*4
provide many
of these consumers with a
OPINION
high-speed
access,
alternative
Internet
MICHAEL, Circuit Judge:
analysts
are forecasting substantial
AT & T Corporation is
largest
still the
growth in the demand for broadband ser-
long
telephone
distance
in
company
the
vices. The most common forms of broad-
country, and this case is about its recent
band technology are cable modem plat-
entry into the broadband telecommunica
digital
(DSLs).
forms and
subscriber lines
tions market that provides high-speed ac
A broadband pipeline, like the basic tele-
cess to the Internet. AT & T
acquired
has
phone infrastructure, serves as a conduit
(MediaOne),
MediaOne
Inc.
which
ISP,
between
Internet user
a
and an
has
cable
in
such
franchise
County,
Henrico
Virginia.
Online,
In approving
Juno,
as America
transfer of
or Prodigy.
franchise,
control of the
the Henrico Coun
In 1998 and
AT
1999 & T began major
a
(the
ty
Supervisors
Board of
County) re
effort to establish a
in
foothold
broadband
quired
provide
MediaOne to
any request
markets around
country.
AT & T
ing
(ISP)
Internet Service Provider
with
sought to enter these markets
acquir-
access to its cable modem platform. AT &
ing existing cable
companies.
T and MediaOne sued the
in
feder
One of its
acquisition
first
targets was
court,
al
arguing that
pro
access
MediaOne,
large
cable company with a
(the
vision
preempted by
was
federal law
Act)
in
and,
franchise
event,
County,
Henrico
any
Virginia.
Communications
violated
law.
state
The district court Like most cable operators,
pro-
MediaOne
agreed and granted summary judgment
vides traditional cable television service.
for AT & T and MediaOne.
affirm
We
as However, the company has upgraded its
Md.,
follows. Under Bell Atlantic
Inc. v.
systems,
including the one in Henri-
(4th
Prince George’s County,
361 (E.D.Va.2000). The court preempts any concluded that power Henrico County has open preempted access condition was Virginia under the Code to open enact an by provisions several (2) the Communica- ques- state law First, tions Act. held the condition tion of County whether has the author- 541(b)(3)(D) violates 47 by re- ity under the Code to enact such quiring provide MediaOne to its telecom- provision. any
munications facilities “to requesting ISP” as a condition for County’s ap- Recently, Md., in Bell Atlantic Inc. proval of the transfer of control. Id. at v. Prince George’s County, 212 863 F.3d Second, (4th 714. the court held that open Cir.2000), we observed that the ques 544(e) 47 condition violates U.S.C. tion of “whether a federal statute because it would condition and preempts restrict the a state statute is a constitu use of MediaOne’s transmission question.” technolo- tional Id. at 865. We went on Third, gy. Id. 715. at after concluding to hold that when court is faced with a service,” that Road Runner is a “cable question constitutional of federal preemp court held that the access condition is tion a question law, of state the court 541(c) also §§ barred 47 U.S.C. only” should “decide the state 544(f)(1). Because the condition would re- if it provides independent “ground upon quire MediaOne to all ISPs non- may which the disposed case of.” at Id. discriminatory access to its cable modem (quoting Ashwander v. Valley Tenn. platform, Auth., the court concluded that 346-47, U.S. S.Ct. (1936) attempting regulate was (Brandeis, Me- 80 L.Ed. J., concur diaOne as a “common carrier” in ring)). violation This rule is based on principle *6 541(c). §of Id. at 715-716. The court that “courts deciding should avoid consti also held that contrary the condition is questions to tutional they unless are essential 544(f)(l)’s § prohibition against “require- to disposition the of a case.” Id. at 865. regarding ments provision the or complete content To point, the we state the obvi of cable services.” Finally, Id. at 716. the ous: an independent ground state law is district court held that open the one that allows us to avoid deciding a requirement is void under Virginia law question. constitutional See id. at 865 (as nothing because in Virginia the (noting Code that the federal statute at issue relates to regulation the of cable systems) governments reserved to “specific local expressly impliedly or powers” authorizes the that might provide grounds for impose case). to such a condition. deciding sum, the In according to Atlantic, Bell if a case with a constitutional The County and Verizon appeal the dis- question preemption presents also an trict order granting court’s and independent dispositive question and un AT & T’s motion summary judgment. for law, der state we should confine ourselves summary We review a judgment decision turn, then, to the latter. We to Virginia de novo. AT & T See Communications of law to see it provides indepen whether an Atlantic-Va., Inc., v.Va. Bell 197 F.3d ground dent disposition of this case. (4th Cir.1999). A Virginia county’s authority under II. state law to license and regulate cable This boils questions: case down to two operators is found in Va.Code (1) (the the question statute”). federal constitutional § of Ann. 15.2-2108 “cable whether the Communications Act Assembly’s grant The General regulato- by or cable statute (or Virginia the locality) county either authority the
ry
Commonwealth, we do
of the
laws
other
statute
broad:
the cable
far)
state
(thus
any independent
have
all
exercise
ordinance
may by
Localities
avoid the
us to
that
ground
allows
law
televi-
cable
over
powers
regulatory
the
question.
preemption
Tele-
federal
the Cable
granted
systems
sion
Compe-
and
Protection
Consumer
vision
does, of
statute
cable
Virginia
1992).
(P.L. 102-3085,
Act of 1992
tition
or
regulation
course,
any cable
prohibit
shall include
powers
regulatory
These
... with
“inconsistent
ordinance
(i)
ser-
customer
to enforce
authority
§ 15.2-
Ann.
law.” Va.Code
federal
with
in accordance
standards
vice
2108(E).
question
This raises
stringent stan-
(ii)
Act,
more
to enforce
embracing feder-
law, by
Virginia
whether
tele-
by the cable
upon
agreed
dards
state
independent
law,
provides
al
through
operator
system
vision
decision,
us
thereby requiring
ground
(iii)
franchise,
regu-
terms
of fed-
question
constitutional
avoid the
for basic
the rates
late
Bell
rule
preemption under
eral
the Act.
with
accordance
Md.,
George’s
v. Prince
Inc.
Atlantic
15.2-2108(F).
Virginia
A
§Ann.
Va.Code
Cir.2000).
(4th
If we
County,
laws of inconsistent provision access open prohibited is not provision open 541(b)(3)(D) § pels because it would MediaOne to platform offer the require provide MediaOne to telecommuni- unaffiliated ISPs for as a use transmission approv- cations facilities as a condition for pipeline for their open services. The ac- ing transfer of control MediaOne’s cable provision cess requires therefore Me- AT franchise to & T. See MediaOne provide diaOne to “telecommunications ... Henrico, County Inc. v. 97 facilities ... as a condition of ... a trans- (E.D.Va.2000). F.Supp.2d Section fer of a franchise” in violation of 541(b)(3)(D) says that franchising “a au- 541(b)(3)(D). § thority may require not a operator cable County The argue Verizon that even provide any telecommunications service or if the cable platform modem is a telecom- facilities, other than institutional net- 541(b)(3)(D) facility, § munications still works, aas condition of the grant initial does not outlaw provision. franchise, renewal, a franchise or a trans- 541(b)(3)(D),they say, only Section prohib- fer a franchise.” 47 U.S.C. requiring localities from operators cable 541(b)(3)(D) added). (emphasis The to construct new telecommunications facili- term “telecommunications” is defined as ties, and the here does im- not transmission, among “the or between pose any such requirement. argu- That points specified user, by the of information ignores ment plain statute’s language. choosing, of the user’s change in without 541(b)(3)(D) Again, § declares that fran- the form or content of the information as chising may authorities require cable 153(43). sent and received.” Id. Al- operators provide any “to telecommunica- though the Communications Act does not tions ... facilities” a condition to the define the word in “facilities” as used transfer of a franchise. The section does facilities,” “telecommunications is evi- not limit itself to new construction. Rath- from the language dent statute er, it any bars requires condition that facilities physical these are the installa- operator to provide telecommunica- or infrastructure necessary for trans- regardless tions facilities of whether the mission. facilities are existence or must be built. MediaOne’s Road Runner service com- separate makes argument the use platform bines of a cable modem that MediaOne’s qualify facilities as a “ca- with access to the Internet. Road Run- system” ble that cannot be said to include cable modem platform, separated ner’s any telecommunications facilities. Under from its Internet component, ais system Communications Act facility telecommunications because it is a facility defined as “a designed that is pipeline telecommunications, is, cable service which includes for “the transmission ... of information of *8 video programming provided and which is the user’s choosing, in change without the multiple to 153(43) within a communi- § form or subscribers content.” Id. (defining 522(7). “telecommunications”). § ty.” County U.S.C. The aAs condition for points approving out that change offers traditional in control of the MediaOne services,” franchise, County “cable like video required programming, provide MediaOne to over its facilities. It “cable modem therefore asserts that (unbundled platform system provision “designed from the because its is to provide content)” to “any requesting Internet Ser- cable service” it cannot be considered a vice provision Provider.” The facility. According unbundles telecommunications Road Runner’s Internet County, providing service Internet access over from its cable modem platform and com- system its cable magically does not trans- service”). very much is It gramming into a telecommuni- system
form the cable
Runner
to have Road
County’s interest
facility.
cations
This would
service.
as a cable
classified
The
County.
disagree
We
opera-
a cable
regulate
allow
recognizes that some
Act
ca-
access over
of Internet
tor’s
than
provide
more
can be used
facilities
(autho-
§§ 541-49
47 U.S.C.
lines. See
ble
Act therefore
of service.
type
one
and enforce
to establish
rizing localities
facilities
multi-purpose
contemplates
facilities, equip-
for cable
requirements
classifica-
regulatory
different
receive
will
service). Verizon, on
ment, and customer
the ser-
on
depending
treatment
tion and
hand,
to hold that
urges us
the other
time.
given
at a
they
providing
are
vice
a “telecommunica-
is
Road Runner service
522(7)(C)
§
47 U.S.C.
example, For
(defin-
153(46)
§
47 U.S.C.
tions service.”
system” does
of “cable
the definition
service”
“telecommunications
ing the term
a
carrier
facility
a
common
include
for
offering of telecommunications
as “the
“except
services
telecommunications
offers
or to such
directly to the public,
a fee
a
be considered
facility shall
that such
effectively avail-
as to be
of users
classes
that such
...
to the extent
system
public, regardless
directly to
able
of video
in the transmission
facility is used
used”).
has an incen-
Verizon
the facilities
subscribers, unless
directly to
programing
Any
argument.
determi-
make this
tive to
solely
is
use
the extent
such
is a “telecommu-
that Road Runner
nation
In addi-
services.”
on-demand
interactive
significant
have
service” could
nications
153(46)
§
the term
tion, under
consequences. Certain
regulatory
as
is defined
service”
“telecommunications
arise,
could
obligations
carrier
common
offering of telecommunications
“the
201(b),
all
§§
see, e.g., 47 U.S.C.
regardless
public
directly to the
fee
telecommunica-
of “interstate
providers
added).
(emphasis
used.”
the facilities
the uni-
must contribute
tions services”
Therefore, although MediaOne maintains
supporting affordable
fund
versal service
proper-
can
its facilities
system,”
“cable
service,
47 U.S.C.
telephone
see
facili-
telecommunications
ly classified as
bottom,
153(44), 202,
Verizon
254. At
§§
path
a transmission
they provide
ties when
its DSL
parity because
regulatory
seeks
Internet.
to the
a telecom-
already regulated as
vio-
See,
access condition
Because
De-
e.g.,
In re
service.
munications
541(b)(8)(D)
§
of the Communica-
Offering,
lates
Ad-
Wireline Servs.
ployment of
may
Act,
analysis of federal
Capability,
our
vanced Telecommunications
¶9 (1999).
want us
parties
of the
al-
stop
Finally,
at that. Some
15 F.C.C.R.
here,
further, however,
argument
determine
go
one makes the
though no
of Me-
classification
considered an
specific regulatory
might even be
Road Runner
Coun-
Runner service. The
the Communi-
Road
service” under
diaOne’s
“information
153(20) (defin-
Runner
a “cable
Road
Act.
ty argues that
cations
See U.S.C.
offering
Act.
as “the
service”
ing
under the Communications
“information
service”
522(6)
acquiring,
generating,
the term
(defining
capability
47 U.S.C.
retriev-
“(A)
one-way
transforming, processing,
storing,
trans-
“cable service”
*9
informa-
(i)
pro-
making
or
available
ing, utilizing,
of
video
mission to subscribers
telecommunications”).
If Road
(ii)
ser-
programming
tion
or
other
via
gramming,
ser-
as
information
(B)
interaction,
classified
any,
if
is
vice,
Runner
subscriber
fran-
subject to local
vice,
not be
would
or use
for the selection
required
is
which
regulation.
common carrier
chising or
pro-
or other
programming
video
such
365
Joint Bd. on
simply
Federal State
Universal We
hold that Henrico County
¶39
541(b)(3)(D)
Serv.,
11,501,
Report,
§
violated
13 F.C.C.R.
when it conditioned
(1998).
the transfer of control of MediaOne’s cable
franchise
requiring MediaOne to un-
illustrates,
preceding paragraph
As the
bundle its Road Runner service and pro-
proper regulatory
the issue of the
classifi-
open
vide
access to its telecommunications
service,
cation of
modem
such
cable
as
facilities,
is,
that
platform.
its cable modem
Runner,
complex
subject
Road
open
Because
provision
is incon-
considerable debate. The outcome will
sistent with the federal Communications
have marked effect on the
Act, it
preempted.
We therefore affirm
FCC,
Internet services. The
in its amicus
judgment
of the district court.
brief,
diplomatically
has
reminded us that
AFFIRMED.
jurisdiction
it has
over all interstate com-
services, including high-speed
munications
WIDENER,
Judge,
Circuit
concurring:
broadband services. The FCC also advis-
I concur in the
I
result.
arrive at that
proceeding,
es us that
it has initiated a
result, however, by a different route from
through a notice of
inquiry,
examine
that of majority.
open
classification and
access issues. See
Inquiry Concerning High Speed Access to
case,
In this
County, by
Henrico
ordi-
the Internet Over
Facili-
Cable
Other
nance, required open
its cable
ties,
(2000).
60,441
Fed.Reg.
platform,
modem
requirement
which
inis
FCC’s notice seeks comment on whether
violation of the Federal Communications
technology
cable modem
should be classi- Act,
541(b)(3)(D),
maj. op.
at
service,
fied as a
telecommunica- 359.
service,
service,
or an information
statute,
A Virginia
Virginia Code
and it also seeks comment
implica-
on the
15.2-2108(E) (1998),
provides, in perti-
adopting any
tions of
particular classifica-
part,
nent
locality may regulate
“[n]o
Inquiry
tion. See In the
Matter
Con-
systems by regulations
cable television
in-
cerning High Speed
Access
the Internet
consistent with either laws of the Com-
Facilities,
Over Cable and Other
No. 00-
relating
monwealth or
to cable
federal
¶
355,
28,
15 (Sept.
WL
(italics added)
operations.”
2000).
addition,
In
the notice indicates
Thus,
tried,
Virginia has
as best as she
in determining
the FCC is interested
statute,
may,
by specific
prevent
even
open
plat-
whether
access to cable modem
running
her counties from
afoul of
necessary
forms is
“goals
further the
Federal Communications Act.
promoting competition, deregulation, inno-
vation,
deployment
high-speed
and the
The determination of whether or not a
¶
course,
services.” Id. 32. Of
the merits
local
preempted by
law has been
And,
access are not before us.
law is a
question.
Constitutional
It “is
indicated,
already
we have
essentially
we do not have
a two-step process of first as-
question
to reach the
certaining
whether Me-
the construction of the two
diaOne’s
Road
determining
bundled
Runner service is a
statutes and then
the Consti-
service,
they
telecommunications ser-
tutional
of whether
are in
vice, or an
Chicago
information service. For the
conflict.”
& NWTR Co. v. Kalo
therefore,
Co.,
being,
311, 317,
time
we are content to Brick & Tile
450 U.S.
(internal
(1981)
expertise
leave these issues to the
of the S.Ct.
disposed of.” major suggest I
346-47, 466. 56 S.Ct. rules. these violates both
ity decision County ordi- Henrico opinion, the my
In law, being of state in violation
nance is federal law”
“inconsistent 15.2-2108(E). Thus, deci- our
Code Henri- fact that the on the rest
sion should contrary to state
co ordinance itself, having presented
law, ground Ashwander, decid- of, contrary to
instead gets question which
ing a Constitutional result.
the same trying by States is served purpose
What here, if are their statutes cooperate, Constitutionally preempt- routinely
to be
ed?