Submitted: October 19, 2017
from United States District Court for the Southern District
of Iowa - Davenport
GRUENDER and BENTON, Circuit Judges, and TUNHEIM,  District
BENTON, Circuit Judge.
Iowa, LLC, doing business as Mediacom, provides cable and
telecommunications services in Iowa City. Mediacom sued the
City of Iowa City and ImOn Communications, LLC. The district
court granted summary judgment to the City and
ImOn. Mediacom appeals. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
only cable provider in the City-has a franchise agreement
with the City, as required by federal and state law.
See 47 U.S.C. § 541(b); Iowa Code §
477A.2(1). The agreement requires Mediacom to pay fees and
provide cable services to almost all the City.
2015, ImOn-provider of cable and telecommunications in other
Iowa cities-publicly stated an intent to provide services,
including cable, in the City. The City Council passed three
resolutions to facilitate ImOn's construction of a
fiber-optic network, including access to public
rights-of-way. The next month, ImOn began providing internet
to City residents. The next year, it began providing
telephone service. ImOn has not provided cable services in
the City and has not applied for a cable franchise. It claims
to have abandoned plans to provide cable services in the
believed the City and ImOn were colluding to its
disadvantage. In Iowa, if another cable provider applies for
a franchise in a municipality, the incumbent provider (here,
Mediacom) can apply for a state certificate of
franchise authority for that municipality. Iowa Code §
477A.2(6). This guarantees the incumbent provider the
"same . . . terms and conditions" the new provider
sued the City, later adding ImOn as a defendant. The lawsuit
sought declarations that the resolutions were void and that
the City could not permit a potential cable provider to
construct a "cable system" without acquiring a
cable franchise. Mediacom also alleged contract violations,
tortious interference, civil conspiracy, and Equal Protection
violations, all depending on whether ImOn could lawfully
build a fiber-optic network without a franchise.
parties moved for summary judgment. Mediacom also moved for
discovery. The district court denied the discovery motion and
granted summary judgment to the City and ImOn. The court
ruled that "ImOn is not presently required to seek a
cable franchise" because it "is not now delivering
court reviews de novo the district court's grant of
summary judgment. Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary
judgment is proper if the court finds "there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law." Fed. R. Civ.
VI of the Communications Act requires a franchise only before
providing cable service, not before constructing the
infrastructure to provide it. "[A] cable operator may
not provide cable service without a franchise."
47 U.S.C. § 541(b)(1) (emphasis added). But Mediacom
argues that local franchising authorities (LFAs) may require
a franchise earlier than federal law does. And ...