Comcast of Sacramento I, LLC; Comcast of Sacramento II, LLC; Comcast of Sacramento III, LLC, Plaintiffs-Appellants/ Cross-Appellees,
Sacramento Metropolitan Cable Television Commission, Defendant-Appellee/ Cross-Appellants.
and Submitted December 17, 2018 San Francisco, California
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
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
Harriet A. Steiner (argued) and Joshua Nelson, Best Best
& Krieger LLP, Sacramento, California, for
Allison W. Meredith and Jeremy B. Rosen, Horvitz & Levy
LLP, Burbank, California, for Amicus Curiae California
Chamber of Commerce.
Dougan Vogel, J. Aaron George, and Gardner Gillespie,
Sheppard Mullin Richter & Hampton LLP, Washington, D.C.,
for Amicus Curiae California Cable & Telecommunications
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
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
Before: Consuelo M. Callahan and N. Randy Smith, Circuit
Judges, and Fernando M. Olguin, [*] District Judge.
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.
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.
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.
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.
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
SMITH, Circuit Judge:
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).
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.
FACTUAL AND ...