                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                          No.    98-50672




           AT&T COMMUNICATIONS OF THE SOUTHWEST, INC.,

                                              Plaintiff-Appellee,

                                VERSUS

                         CITY OF AUSTIN,

                                             Defendant-Appellant.




                          No. 00-50103




           AT&T COMMUNICATIONS OF THE SOUTHWEST, INC.,

                                              Plaintiff-Appellee,

                                VERSUS

                         CITY OF AUSTIN,

                                             Defendant-Appellant.



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


Before DUHÉ, PARKER, Circuit Judges, and FOLSOM 1, District Judge.

  1
   District Judge of the Eastern District of Texas, sitting by
designation.
DUHÉ, Circuit Judge:

     This appeal challenges the district court's refusal to vacate

its prior judgments for mootness.     For the following reasons, we

hold that this case is moot, vacate the district court’s judgments,

remand the case to the district court, and direct the court to

dismiss it as moot.

                            BACKGROUND

     AT&T Communications of the Southwest, Inc. (“AT&T”) filed the

underlying lawsuit in the Western District of Texas in 1997.   In it

AT&T alleged that the Federal Telecommunications Act of 1996 (the

“FTA”) preempted Austin's municipal telecommunications franchise

ordinance (“the ordinance”) and that the ordinance, therefore,

violated the Constitution's Supremacy Clause.    The district court

agreed.   Specifically, the district court held that Austin through

the ordinance attempted to charge AT&T for something other than the

“use” of the city’s rights-of-way the FTA makes compensable.    See

47 U.S.C. § 253(c) (limiting the regulatory power of municipalities

to “manag[ing] the public rights-of-way or to requir[ing] fair and

reasonable compensation from telecommunications providers . . . for

use of public rights-of-way”).       The court enjoined Austin from

enforcing the ordinance.   Austin appealed.

     After both parties briefed the appeal, the Texas Legislature

enacted House Bill 1777.     House Bill 1777     vests in the Texas

Public Utility Commission (“PUC”) plenary power to “establish a

uniform method for compensating municipalities for the use of a

                                 2
public right-of-way by certificated telecommunications providers.”

TEX. LOCAL GOV’T. CODE § 283.001(c).      House Bill 1777 prohibits

municipalities such as Austin from demanding of telecommunications

providers such as AT&T “any compensation other than the fee” for

use of rights-of-way assessed by the PUC.       TEX. LOCAL GOV’T. CODE §

283.056(a)(1).   House   Bill   1777   also   allows   a      municipality

involved in litigation of the instant sort to elect to receive an

enhanced “base amount” of fees from the PUC in exchange for the

municipality’s waiver of its right to past due franchise fees and

repeal of its disputed franchise fee ordinance.            TEX. LOCAL GOV’T.

CODE § 283.053(e).

     Following the passage of House Bill 1777, Austin waived its

rights to fees past due from AT&T under the ordinance, repealed the

ordinance, and asked us to dismiss its appeal and vacate the

district court's prior judgment. We declined to do so and remanded

the case to the district court to determine “what effect, if any,

the above described action by the City of Austin has on the court's

existing judgment . . . [and to] [t]ake whatever steps it considers

necessary to conclude this litigation.”       The District Court then

entered an order holding that the case was not moot.            Even after

Austin repealed the ordinance, the court held, the city could sue

AT&T for fees past due under the ordinance and still attempt under

House Bill 1777 to assess telecommunications companies fees in ways

not authorized by the FTA.    Hence, the district court reasoned, the

case was still “live.”       The district court did not vacate its

                                   3
judgment and opinions.

         Following shortly thereafter was a motion by Austin to alter

or amend the order.         The district court denied this motion.       AT&T

here appeals its denial.

                                   DISCUSSION

         I.     Mootness

         This case is moot.      A case is moot “if the issues presented

are no longer live.”         Campanioni v. Barr, 962 F.2d 461, 464 (5th

Cir. 1992).        Because we hold that the issue this case presents is

no       longer    live,   our   mootness   determination   turns   on   our

understanding of what the issue here is.            The issue is Austin’s

right to charge AT&T fees under the ordinance.          That issue is not

live.         Austin cannot attempt to collect from AT&T fees past due

under the ordinance.         Austin is estopped from doing so because it

has waived repeatedly its right to past due fees from AT&T.

Austin, moreover, repealed the ordinance, so it cannot attempt in

the future to assess AT&T fees under its terms.               Since Austin

cannot further attempt to collect any fees from AT&T under the

ordinance, the issue         whether the FTA prohibits Austin from doing

so is moot.2

         II.    Vacatur


     2
      In other words, we think it “absolutely clear that the
allegedly wrongful behavior” – Austin’s attempt to charge AT&T fees
under the ordinance – “[can]not be reasonably expected to recur.”
Friends of the Earth, Inc. v. Laidlaw Environmental Serv., Inc.,
120 S. Ct. 693, 709 (2000).

                                        4
      Because this case is moot, we vacate the district court’s

judgments, remand the case to the district court, and direct the

court to dismiss it as moot.   Moot cases merit vacatur.        See United

States v.    Munsingwear,   Inc.,   340   U.S.   36,   39   (1950)   (“[t]he

established practice of the Court in dealing with a civil case from

a court in the federal system which has become moot is to reverse

or vacate the judgment below and remand with a direction to

dismiss”).

      Vacatur does not lie, however, when the party seeking relief

from the district court’s judgment – Austin in this case – “caused

the mootness by voluntary action.”        U.S. Bancorp Mortgage Co. v.

Bonner Mall Partnership, 513 U.S. 18, 24 (1994).             AT&T contends

that if this case is moot, the mootness owes to Austin’s voluntary

action.   We disagree.   While Austin may have acted voluntarily in

foregoing fees past due under the ordinance in favor of the higher

“base amount” the new House Bill 1777 / PUC regime offers and in

repealing the ordinance, those acts did not cause this case to

become moot.   Texas’s passage of House Bill 1777 caused this case

to become moot.     House Bill 1777 drained this case of life by

making Austin’s repeal of the ordinance a fait accompli and by

establishing procedures through which the city could forego fees

past due from AT&T under the ordinance and economic incentives for

the city to do so.3      House Bill 1777, then, and not Austin’s

  3
     Namely, enhancement of the “base amount” of fees Austin would
receive from the PUC in exchange for renouncing the right to fees

                                    5
responses to it, caused this case to become moot.

                             CONCLUSION

     Since the issues in this case are no longer live, this case is

moot.   Because   this case is moot and its mootness was not caused

by Austin’s voluntary action, we vacate the district court’s

judgments, remand the case to the district court, and direct the

court to dismiss it as moot.

     VACATED and REMANDED with instructions.




past due under the ordinance from AT&T.

                                  6
