Mediaone Group v. County of Henrico
| Decision Date | 27 September 2000 |
| Docket Number | INCORPORATED,No. 00-1680,ATLANTIC-VIRGINI,N,No. 00-1719,00-1680,00-1719 |
| Citation | 257 F.3d 356 |
| Parties | (4th Cir. 2001) MEDIAONE GROUP, INCORPORATED; MEDIAONE OF VIRGINIA, INCORPORATED; AT&T; CORPORATION, Plaintiffs-Appellees, v. COUNTY OF HENRICO, VIRGINIA, Defendant, BELL ATLANTIC CORPORATION; BELL; BELL ATLANTIC INTERNET SOLUTIONS, INCORPORATED, Intervenors/Defendants, and GTE INTELLIGENT NETWORK SERVICES, INCORPORATED, d/b/a GTE.net, Intervenor-Appellant. VIRGINIA CITIZENS CONSUMER COUNCIL; CONSUMER FEDERATION OF AMERICA; CENTER FOR MEDIA EDUCATION; DISTRICT OF COLUMBIA; CITY OF TACOMA, WASHINGTON; MONTGOMERY COUNTY, MARYLAND; U.S. CONFERENCE OF MAYORS; NATIONAL LEAGUE OF CITIES; NATIONAL ASSOCIATION OF COUNTIES; NATIONAL ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS; VIRGINIA ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS; TEXAS ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS; MINNESOTA ASSOCIATION OF COMMUNITY TELECOMMUNICATIONS ADMINISTRATORS; OPENNET COALITION; HANDS OFF THE INTERNET; FEDERAL COMMUNICATIONS COMMISSION; NATIONAL CABLE TELEVISION ASSOCIATION; VIRGINIA TELECOMMUNICATIONS ASSOCIATION; WEST VIRGINIA TELECOMMUNICATIONS ASSOCIATION; CABLE TELECOMMUNICATIONS ASSOCIATION OF MARYLAND, DELAWARE AND THE DISTRICT OF COLUMBIA, INCORPORATED; NORTH CAROLINA CABLE TELECOMMUNICATIONS ASSOCIATION; SOUTH CAROLINA TELEVISION ASSOCIATION, Amici Curiae. MEDIAONE GROUP, INCORPORATED; AT&T; CORPORATION; MEDIAONE OF VIRGINIA, INCORPORATED; Plaintiffs-Appellees, v. COUNTY OF HENRICO, VIRGINIA, Defendant, GTE INTELLIGENT NETWORK SERVICES, INCORPORATED, d/b/a GTE.net, Intervenor/Defendant, and BELL ATLANTIC CORPORATION; BELL; BELL ATLANTIC INTERNET SOLUTIONS, INCORPORATED, Intervenors-Appellants. VIRGINIA CITIZENS CONSUMER COUNCIL; CONSUMER FEDERATION OF AMERICA; CENTER FOR MEDIA EDUCATION; CITY OF TACOMA, WASHINGTON; MONTGOMERY COUNTY, MARYLAND; DISTRICT OF COLUMBIA; U.S. CONFERENCE OF MAYORS; NATIONAL LEAGUE OF CITIES; NATIONAL ASSOCIATION OF COUNTIES; NATIONAL ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADVISORS; VIRGINIA ASSOCIATION OF TE |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge.
COUNSEL ARGUED: Edward Joseph Fuhr, HUNTON & WILLIAMS, Richmond, Virginia; Andrew Gerald McBride, COOPER, CARVIN & ROSENTHAL, P.L.L.C., Washington, D.C., for Appellants. David William Carpenter, SIDLEY & AUSTIN, Chicago, Illinois, for Appellees. ON BRIEF: Stacy C. Taylor, Eric H. Feiler, HUNTON & WILLIAMS, Richmond, Virginia; Joseph P. Rapisarda, Jr., Joseph T. Tokarz, II, Karen M. Adams, COUNTY ATTORNEY'S OFFICE, Richmond, Virginia, for Appellant Henrico. Michael A. Carvin, Noel J. Francisco, COOPER, CARVIN & ROSENTHAL, P.L.L.C., Washington, D.C., for Appellant GTE; Brett M. Kavanaugh, KIRKLAND & ELLIS, Washington, D.C., for Appellant Bell Atlantic. Peter D. Keisler, David L. Lawson, SIDLEY & AUSTIN, Chicago, Illinois; James C. Roberts, Carter Glass, IV, Dabney Carr, IV, MAYS & VALENTINE, L.L.P., Richmond, Virginia; Mark C. Rosenblum, Laura A. Kaster, AT&T CORPORATION, Basking Ridge, New Jersey; Sean Lindsay, David White, MEDIAONE GROUP, INC., Englewood, Colorado, for Appellees. Andrew Jay Schwartzman, Cheryl A. Leanza, Harold J. Feld, MEDIA ACCESS PROJECT, Washington, D.C., for Amici Curiae Consumer Council, et al. Nicholas P. Miller, William Malone, Joseph Van Eaton, John F. Noble, James R. Hobson, MILLER & VAN EATON, P.L.L.C., Washington, D.C., for Amici Curiae NATOA, et al. William P. Cook, Pamela J. Marple, MANATT, PHELPS & PHILLIPS, L.L.P., Washington, D.C., for Amicus Curiae OpenNET. Christopher Wolf, Bruce E. Boyden, PROSKAUER ROSE, L.L.P., Washington, D.C.; Tanya L. Forsheit, PROSKAUER ROSE, L.L.P., Los Angeles, California, for Amicus Curiae Hands Off. William B. Schultz, Acting Assistant Attorney General, Jacob M. Lewis, Mark Davies, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Christopher J. Wright, General Counsel, Jonathan E. Nuechterlein, Deputy General Counsel, James M. Carr FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., for Amicus Curiae Commission. Howard J. Symons, Tara M. Corvo, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, P.C., Washington, D.C., for Amici Curiae National Cable Television, et al.
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the opinion, in which Judge Wilkins joined. Judge Widener wrote a concurring opinion.
AT&T Corporation is still the largest long distance telephone company in the country, and this case is about its recent entry into the broadband telecommunications market that provides high-speed access to the Internet. AT&T has acquired MediaOne Group, Inc. (MediaOne), which has a cable franchise in Henrico County, Virginia. In approving the transfer of control of the franchise, the Henrico County Board of Supervisors (the County) required MediaOne to provide any requesting Internet Service Provider (ISP) with access to its cable modem platform. AT&T and MediaOne sued the County in federal court, arguing that the open access provision was preempted by federal law (the Communications Act) and, in any event, violated state law. The district court agreed and granted summary judgment for AT&T and MediaOne. We affirm as follows. Under Bell Atlantic Md., Inc. v. Prince George's County, 212 F.3d 863 (4th Cir. 2000), we must consider the state law question first. However, because Virginia law does not provide an independent ground for disposition of the case, we proceed to the preemption question. Henrico County's open access provision violates the federal Communications Act, 47 U.S.C. S 541(b)(3)(D), by forcing MediaOne to provide its telecommunication facilities (its cable modem platform) to any ISP as a condition for the County's approval of the transfer of control of the franchise. Because the open access provision is inconsistent with the federal Communications Act, it is preempted and superceded.
Most residential and small business consumers gain access to the Internet through slower narrowband technology, specifically, through the traditional dial-up telephone modem that is connected to copper lines. Broadband technology is beginning to provide many of these consumers with a high-speed alternative to Internet access, and analysts are forecasting substantial growth in the demand for broadband services. The most common forms of broadband technology are cable modem platforms and digital subscriber lines (DSLs). A broadband pipeline, like the basic telephone infrastructure, serves as a conduit between an Internet user and an ISP, such as America Online, Juno, or Prodigy.
In 1998 and 1999 AT&T began a major effort to establish a foothold in broadband markets around the country. AT&T sought to enter these markets by acquiring existing cable television companies. One of its first acquisition targets was MediaOne, a large cable company with a franchise in Henrico County, Virginia. Like most cable operators, MediaOne provides traditional cable television service. However, the company has upgraded its cable systems, including the one in Henrico County, to include a cable modem platform that provides a high-speed link to the Internet. In connection with this upgrade MediaOne joined with others to form a company doing business as "Road Runner." Road Runner provides a "bundled" service that combines MediaOne's broadband pipeline (the cable modem platform) with the Internet services usually offered by an ISP. MediaOne customers who want Internet access over cable do not have the option of using just MediaOne's cable modem platform; rather, they must subscribe to Road Runner and take the Internet services it offers. Although Road Runner customers may subscribe to an ISP unaffiliated with MediaOne, most customers have no incentive to do that because the...
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