                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                           ____________

                                           No. 98-50874
                                           ____________


               CITY OF AUSTIN,


                                               Plaintiff-Appellant,

               versus


               SOUTHWESTERN BELL VIDEO SERVICES, INC.,


                                               Defendant-Appellee.



                           Appeal from the United States District Court
                                for the Western District of Texas

                                         October 14, 1999

Before EMILIO M. GARZA and PARKER, Circuit Judges, and FITZWATER, District Judge.*

EMILIO M. GARZA, Circuit Judge:

       The City of Austin (“the City”) claims that Southwestern Bell Video Service, Inc. (“SBVS”),

a video programmer, must enter into a cable-television franchise agreement with it. The district court

disagreed, granting summary judgment to SBVS. We affirm.

       SBVS, a wholly-owned first-tier subsidiary of SBC Communications, Inc. (“SBC”), provides

video (i.e., television) programming to multi-dwelling units (i.e., apartment complexes) located in


       *
               District Judge of the Northern District of Texas, sitting by designation.
Austin, Texas. Its delivery of television programming to end-users (i.e., subscribers) involves several

steps. SBVS receives satellite and broadcast signals on equipment that it owns and operates.1 It then

routes the signals to a demarcation point located on the property of Southwestern Bell Telephone

Company (“SWBT”), another wholly-owned first-tier subsidiary of SBC. After it receives the signals,

SWBT sends them over its network of copper-wire and fiber-optic cables (“wire network”) to various

apartment complexes.2 When the signals arrive at an apartment complex, they enter an in-house cable

network, which delivers them to individual apartment units, where subscribers live.

       Although they are owned by the same corporate entity (i.e., SBC), SBVS and SWBT operate

independently of one another. They share no officers or employees. SBVS pays SWBT for the video

supertrunking service, and leases the space located on SWBT’s property that serves as the

demarcation point for the transfer of signals to the wire network. SWBT alone decides how it will

transmit the signals through its wire network.

       The City filed suit against SBVS, alleging that SBVS’s failure to enter into a cable-television

franchise agreement with it violated the Communications Act of 1934 (“the Act”)3 and Texas’ home-

rule statute.4 The district court, after considering stipulations filed by the parties, granted summary


       1
               SBVS’s equipment consists of multiple satellite dishes, a tower and antennae, and
signal-processing equipment, known as “headend.”
       2
               The transmission service that SWBT provides to SBVS is called “video supertrunking
               service.”
       3
              Subject to an exception inapplicable to this case, the Act provides that “a cable
operator may not provide cable service without a cable franchise.” 47 U.S.C. § 541(b)(1).
       4
               The home-rule statute provides that a home-rule city may, among other things:

       [P]rohibit the use of any street, alley, highway or grounds of the city by any telegraph,
       telephone, electric light, street railway, interurban railway, steam railway, gas

                                                 -2-
judgment to SBVS, holding that “SBVS is not a cable operator under the Act and is therefore not

subject to the [Act’s] franchise requirement.”5 The City timely appealed.

       We review a grant of summary judgment de novo. See Centennial Ins. Co. v. Ryder Truck

Rental, Inc., 149 F.3d 378, 381 (5th Cir. 1999). Summary judgment is proper when “there is no

genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter of law.”

FED. R. CIV. P. 56(c). Factual stipulations can provide the basis for resolving a case at the summary

judgment stage. See Centennial, 149 F.3d at 382.

       The City argues that the district court erred in holding that SBVS is not a “cable operator.”

Under the Act, a “cable operator” is “any person or group of persons (A) who provides cable service

over a cable system and directly or through one or more affiliates owns a significant interest in such

cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the

management and operation of such a cable system.”6 47 U.S.C. § 522(5). This definition makes clear


       company, or any other character of public utility without first obtaining the consent
       of the governing authorities expressed by ordinance and upon paying such
       compensation as may be prescribed and upon such condition as may be provided by
       any such ordinance.

TEX. REV. STAT. ANN. art. 1175(2) (West Supp. 1999).
       5
                 Although it mentioned only the Act in its order, the district court disposed of all of
the City’s claims. SBVS’s motion for summary judgment covered “all issues” raised in the City’s
pleading, and sought the entry of “a take nothing judgment on the City of Austin’s claims.” The
district court granted the motion without qualification. On appeal, the City makes no argument that
SBVS has violated the home-rule statute.
       6
                Neither party disputes that the commercial entities connected with this case))that is,
SBVS, SWBT, and SBC))are “persons” under the Act, see 47 U.S.C. § 522(12) (defining “person”
as “an individual partnership, association, joint stock company, trust, corporation, or governmental
entity”), and that SBVS’s television programming qualifies as “cable service” under the Act, see id.
§ 522(6) (defining “cable service” as “(A) the one-way transmission to subscribers of (i) video
programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is

                                                  -3-
that, even if t he arrangement between SBVS and SWBT is a “cable system,”7 that fact alone is

insufficient to establish SBVS as a “cable operator.” SBVS can qualify as a “cable operator” only

if it meets one of two tests. First, under the "ownership" test, SBVS qualifies as a cable operator

if it is a person or a member of a group of persons who eit her “directly or through one or more

affiliates owns a significant interest” in a “cable system.” Id. § 522(5)(A). Second, under the

"control" test, SBVS is a cable operator if it “controls, or is responsible for, through any arrangement,

the management and operation” of the “cable system.” Id. § 522(5)(B).

        The City asserts that SBVS fits into both of these descriptions. We disagree. SBVS "owns"

and "controls" only some components of a “cable system”))satellite dishes, a tower and antennae,

and “headend” ))which collectively do not amount to a “significant interest” therein.8 As the district


required for the selection or use of such video programming or other programming service”).
Further, there is no dispute that SBVS, SWBT, and SBC are all “affiliates” as defined by the Act.
See id. § 522(2) (“affiliate . . . means another person who owns or controls, or is owned or controlled
by, or is under common ownership with, such person.”).
        7
                For the sake of discussion, we accept the City’s argument that the equipment of SBVS
and the wire network of SWBT together comprise a “cable system” under the Act. See id. § 522(7)
(defining “cable system” as “a facility, consisting of a set of closed transmission paths and associated
signal generation, reception, and control equipment that is designed to provide cable service which
include video programming and which is provided to multiple subscribers within the community”).
        8
               The dissent suggests that SBVS meets the "ownership" test. However, while the
combination of SBVS and SWBT may constitute a “cable system,” even through its affiliate SBVS
does not “own” anything more than its own pieces of the system -- the satellite dishes, broadcast
antennae, and “headend.” As the District Court found,

        the Cable Act does not transform an entity into a cable operator merely because it is
        an affiliate of another entity which owns a cable system. The entity itself, through its
        affiliate or affiliates, must also “own[] a significant interest in such a cable system” .
        ..

City of Austin, No. A-98-CA-028, at 15 (emphasis added); cf. National Cable Television Ass’n, Inc.
v. FCC, 33 F.3d 66, 74 (D.C. Cir. 1994) (rejecting the assertion that “ownership of the component

                                                   -4-
court observed:

       SWBV [i.e., SBVS] and SWBT do not share any board members, corporate officers,
       or employees. SWBV’s “space” at SWBT’s central office site is leased. Moreover,
       SWBV does not have an exclusive right to use SWBT’s supertrunking video service,
       and, like any other customer of SWBT to whom the service is available, must pay a
       standard tariff to utilize SWBT’s service. In fact, once SWBV’s transmissions pass
       over into SWBT’s facilities, SWBV has no control, management, or responsibility
       over the manner in which SWBT provides its supertrunking video service.
       Furt hermore, SWBV’s headend equipment is entirely separate from SWBT’s
       transmission facilities [i.e., wire network].

City of Austin v. Southwestern Bell Video Services, No. A-98-CA-028, at 15 (W.D. Tex. July 31,

1998). SBVS is thus not a "cable operator" as defined by the Act.9

       Accordingly, the district court did not err in holding that SBVS need not enter into a cable-

television franchise agreement with the City. We affirm.10




parts of a system is irrelevant to the question whether it is a cable system”). The dissent’s analysis
implies that separately incorporated entities have ownership interests in each other’s assets merely
because they have a common parent. We are unable to find any authority to support this principle.
       9
               The dissent correctly states that we dispose of this case on a legal argument SBVS
does not assert. Despite SBVS’s failure to make this argument, we affirm on the express grounds
upon which the District Court relied. See City of Austin, No. A-98-CA-028, at 14-16. We note in
passing that SBVS may have omitted this argument because of the implications of the argument for
SBC, SBVS’s parent corporation. At oral argument, the City conceded that it will demand that SBC
obtain a franchise for the SBVS-SWBT “cable system” if its claim against SBVS is unsuccessful.
Therefore, only by proving that SBVS falls within the “public right-of way” exception of § 522(7)(B)
or the “common carrier” exception of § 522(7)(C) could both SBVS and SBC be exempted from
entering into a cable franchise agreement with the City. As we hold that SBVS is not a “cable
operator” as defined by the Act, we do not reach the questions of whether SBVS (or, for that matter,
SBC) falls within either of the two exceptions.
       10
                We deny as moot SBVS’s Motion to Dismiss as Moot the City’s Appeal Related to
Its Claim for Injunctive Relief.

                                                 -5-
FITZWATER, District Judge, dissenting:

       The majority opinion does not reach several issues of statutory construction that this appeal

presents. The resolution of these questions is important to municipal franchising authorities,

telecommunications companies, and the cable television industry.11 Instead, it decides the case on a

narrow basis that even the appellee does not advance, and in so doing misreads 47 U.S.C. §

522(5)(A). I respectfully dissent.

       With exceptions not pertinent here, 47 U.S.C. § 541(b)(1) states that “a cable operator may

not provide cable service without a franchise.” Section 522(5) defines “cable operator” as

               any person or group of persons (A) who provides cable service over
               a cable system and directly or through one or more affiliates owns a
               significant interest in such a cable system, or (B) who otherwise
               controls or is responsible for, through any arrangement, the
               management and operation of such a cable system[.]

Section 522(2) provides that “‘affiliate’, when used in relation to any person, means another person

who owns or controls, is owned or controlled by, or is under common ownership or control with,

such person[.]” The parties stipulated below, and the majority acknowledges, that Southwestern Bell

Video Services, Inc. (“SBVS”) and Southwestern Bell Telephone Company (“SWBT”) are both

wholly-owned first-tier subsidiaries of SBC Communications, Inc. (“SBC”). SBVS and SWBT are

therefore under common ownership or control, and the two entities are affiliates.

       The majority accepts arguendo “the City’s argument that the equipment of SBVS and the

wire network of SWBT together comprise a ‘cable system’ under the Act.” It holds that SBVS is

not a cable operator, however, because it “‘owns’ and ‘controls’ only some components of a ‘cable



       11
          The appellant requested oral argument on the ground that this appeal presents an issue of
apparent first impression. The appellee recognized in its statement regarding oral argument that
“[t]his appeal presents important statutory interpretation questions not previously resolved by an
appellate court.”
system’))satellite dishes, a tower and antennae, and ‘headend’ ))which collectively do not amount

to a ‘significant interest’ therein.” Maj. Op. at 4 (footnote omitted). The majority quotes from the

opinion below, in which the district court explained its basis for concluding that, even if SBVS’s and

SWBT’s facilities together constitute a cable system, “there is no evidence that [SBVS] has

significant ownership or control over the cable system.” The majority and the district court interpret

§ 522(5)(A) to mean that SBVS itself must have a significant ownership interest in the cable system,

measured separately from its affiliate’s ownership interest.12 This conclusion misinterprets §

522(5)(A).

        Section 522(5)(A) provides that the ownership of a significant interest in a cable system may

be “direct[ ] or through one or more affiliates.” As wholly-owned first-tier subsidiaries of SBC,

SBVS and SWBT are under common ownership or control and are therefore “affiliates.” There is

no dispute for purposes of today’s decision that the equipment of SBVS and the wire network of

SWBT comprise a “cable system.” It follows that because SBVS and SWBT together own all the

equipment and network that constitute the cable system, SBVS owns a significant interest in it, at

least through its affiliate.13 I respectfully disagree with the majority’s contrary interpretation.



        12
         The district court also cited the Federal Communication Commission’s ruling in In re
Entertainment Connections, Inc., FCC 98-111 (June 30, 1998). In Entertainment Connections,
however, the provider of cable services unquest ionably was not an affiliate of the local exchange
carrier. See id. at ¶¶ 55-56.
        13
         The majority responds by stating that “[t]he dissent’s analysis implies that separately
incorporated entities have ownership interests in each other’s assets merely because they have a
common parent.” Maj. Op. at 5 n.8. I respectfully disagree. I conclude that, directly or through
SWBT, SBVS owns a significant interest in the cable system because SBVS and SWBT are affiliates
who are under the common ownership or control of SBC, not because SBVS owns an interest in
SWBT’s assets. I am merely interpreting § 522(5)(A) as Congress enacted it, not attempting to
rewrite corporate law.

                                                  -7-
       Moreover, one would think that if this case could so easily be resolved based on this simple

premise, SBVS would have vigorously raised and pressed this argument. But even SBVS does not

ask that we affirm the district court on this reasoning.14 Appellant City of Austin (the “City”) asserts

in its opening brief that, standing alone or in combination with SWBT, SBVS owns a significant

interest in the cable system. It challenges the district court’s contrary reasoning as neither

supportable nor fully comprehensible. SBVS does not contest these contentions. It urges affirmance

based on two exceptions to the definition of “cable system” found in § 522(7). SBVS argues that it

does not use public right-of-way, thus falling within the exception of § 552(7)(B), and that its

activities fall within the common carrier exception, § 552(7)(C).15 As the City points out in its reply

brief, SBVS “has not contested on appeal the proposition that it has the requisite interest or control

in the cable system to bring it otherwise within the reach of both subsections (A) and (B) of 47 U.S.C.

§ 522(5).” Appellant Rep. Br. at 3.

       I respect the views of my able colleagues, but I would decide this case based on the important

issues presented rather than upon a misinterpretation of the definition of “cable operator.”




       14
         SBVS asserts in its statement of the issue that “[t]he sole issue before this Court is whether,
for purposes of the Cable Act, SBVS operated a ‘cable system’ within the City of Austin and thus
was a ‘cable operator’ who could be required by the City to obtain a municipal franchise and to remit
franchise fees to the City.” Appellee Br. at 2.
       15
          In responding to one of the City’s arguments concerning the applicability of the common
carrier exception, SBVS focuses on the absence of a cable system rather than upon the definition of
cable operator. See Appellee Br. at 31 (“[O]nly after the existence of a ‘cable system’ has been
established does the ‘cable operator’ definition’s reference to affiliates become relevant to any
analysis.”).
         SBVS also argues that our decision in City of Dallas v. FCC, 165 F.3d 341 (5th Cir. 1999),
is distinguishable, and counters the policy arguments advanced by the City and amici curiae in the
event the relevant statute is deemed to be ambiguous.

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