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
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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
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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
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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.
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