Kccp Trust v. City of North Kansas City

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation432 F.3d 897
Docket NumberNo. 05-2265.,05-2265.
PartiesKCCP TRUST, a Delaware Statutory Trust, doing business as Time Warner Cable, Appellant, v. THE CITY OF NORTH KANSAS CITY, Appellee.
Decision Date29 December 2005

Bernard J. Rhodes, argued, Kansas City, MO (Michael P. O'Shea, on the brief), for appellant.

James R. Borthwick, argued, Kansas City, MO (Michael E. Norton, Kansas City, on the brief), for appellee.

Before LOKEN, Chief Judge, BYE, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

KCCP Trust, doing business as Time Warner Cable, ("Time Warner") sued to enjoin the City of North Kansas City, Missouri, ("the City") from building a fiber-optic network which it contended Missouri statutory and constitutional law prohibited in the absence of a referendum. The district court1 dismissed for lack of jurisdiction without prejudice. We affirm.

I. Background

In June 2003, the City Council passed a resolution to commission a review of the City's cable infrastructure. The City contracted with Black & Veatch Corporation, a private engineering firm, to conduct this review. The ensuing report and analysis proposed that the City construct and operate a fiber-optic network to provide telephone, internet, and television services to every business and home in the City. The report stated that providing cable-television services would be necessary in order for the network to be self-supporting.

In August 2004, the City Council contracted with Black & Veatch to design and plan a fiber-optic network. The planned network would provide data, voice, and video to customers in the City. However, as initially planned and constructed, the network would not and indeed could not provide cable-television services without being connected to a cable television head end facility. A head end facility contains the satellite dishes and other equipment necessary to supply television programming to a fiber-optic network.2 The City Council has not yet decided and has never voted on the issue of whether to provide cable-television services on the planned fiber-optic network, and the contract with Black & Veatch does not call for the preparation of plans for the construction of a head end facility or for the connection to an existing head end facility.

The following month, Time Warner, which currently provides cable television and other related services to the greater Kansas City area, wrote a letter to the City stating that it believed that the proposed fiber-optic network would violate Missouri law and in particular Mo.Rev.Stat. § 71.970. Section 71.970(1) provides that "[n]o municipality may own or operate cable television facilities and services unless approved by a vote of the people." The City Council disagreed, advising Time Warner that the City had not yet decided whether to offer cable-television services over its fiber-optic network. The City acknowledged that a public vote would be required prior to offering cable-televison services over the planned network.

Time Warner then filed suit to enjoin the City from taking further steps in the development or construction of its fiber-optic network without a public vote. In the alternative, Time Warner sought a ruling that would bar the City from using its planned fiber-optic network to provide cable-television services without a public vote. In addition to its claims under Missouri law, Time Warner made several claims under the United States Constitution. The district court found that it lacked jurisdiction over the complaint because the case was not ripe for judicial consideration. At that time, the City had not violated state law nor stated an intention to do so. The district court found that the City does not own a cable-television facility or offer cable-television services, noting that the City may do so in the future but then again it might not.

II. Discussion

The district court dismissed for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Where, as here, the district court's decision is based upon the complaint and on its own determination of disputed factual issues, we review those findings under the "clearly erroneous" standard. Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990). The district court was not clearly erroneous.

A. Statutory Claim

Section 71.970(1) expressly prohibits municipalities from owning or operating cable-television facilities unless the municipality's populace votes to approve the endeavor. The pertinent question then is whether the City owns or operates such a facility or is threatening to do so in violation of § 71.970(1). In order to own cable-television facilities, the City would require the capacity to receive cable-television signals for transmission over its fiber-optic network. It is factually undisputed that the City's fiber-optic network is not connected to the required head end facility to receive such signals nor is there any plan to acquire it. Thus, Time Warner's statutory claim rests on a contingent future event: the ownership or operation of a cable-television facility by the City; therefore, Time Warner's claim that a vote is required under Missouri law is not ripe in that the City does not currently own or operate a cable-television facility because the planned fiber-optic network will not be capable of transmitting cable-television signals and because the City recognizes that in order for it to provide cable-television services a public vote would be required.

"The ripeness doctrine is grounded in both the jurisdictional limits of Article III of the Constitution and policy considerations of effective court administration." Pub. Water Supply Dist. No. 8 v. City of Kearney, 401 F.3d 930, 932 (8th Cir.2005). Article III limits the federal courts to deciding "Cases" and "Controversies" and thus prohibits us from issuing advisory opinions. Id. "One kind of advisory opinion is an opinion advising what the law would be upon a hypothetical state of facts." Id. (internal quotations and citations omitted). "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140...

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