concurring.
The prior decision of this court authored by Chief Judge Harry Phillips, held, in effect, that the City of Frankfort, through its agent, Community, was operating a CATV system in that city, and held:
This suit was filed by Consolidated to challenge the expansion of the City-owned CATV system, contending that the acts of the City and its agencies impair obligations of contract and deny Consolidated due process of law as guaranteed by the Fourteenth Amendment.
*363The City and its agencies are shown to be doing nothing more than to use City-owned utility poles for the extension of the CATV services provided by the City in areas presently served by Consolidated. The record shows that it has been the policy of the City and its agencies to provide CATV service to an ever increasing number of areas in the City of Frankfort, beginning with those areas where, because of topography, the need for cable television was most urgent.
Consolidated Television Cable Service, Inc. v. City of Frankfort, Ky., et al., 465 F.2d 1190, 1192 (6th Cir.1972) (emphasis added).
The suit in that case by Consolidated did not take issue with the fact that, in effect, it was the City of Frankfort, through its agency, Community, that operated the CATV system competing with Consolidated. Constitutional challenges were raised in the earlier case to the actions of the City through extension of CATV services into the area previously served exclusively by Consolidated. I concur, therefore, with the holding that principles of res adjudicata bar this action by Consolidated. (I admit some difficulty, however, with the holding in Norrell v. Electric and Water Plant Board, 557 S.W.2d 900 (Ky.App.1977) that plaintiffs were similarly barred from challenging the City’s authority to operate a CATV system under Kentucky law.)
I also concur with Judge Gilmore’s decision that the district court was not in error on this record that Community was, in fact, an agent of the City of Frankfort for purposes of considering the Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) state action immunity doctrine. I further agree that Kentucky law permits regulation of CATV service, and permits the municipality to subject CATV operations to a franchise arrangement. City of Owensboro v. Top Vision Cable Co., 487 S.W.2d 283 (Ky.1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1926, 36 L.Ed.2d 410 (1973). I am not sure, however, that there is clearcut Kentucky law that deals with municipal supervision over, or ownership of, CATV operations, that is “clearly articulated and affirmatively expressed” within the meaning of Parker. There is authority from a United States district court in Kentucky that awarding an exclusive franchise to a CATV operator falls within the “ ‘state action’ exemption ... created in Parker v. Brown.” Hopkinsville Cable TV, Inc. v. Pennyroyal Cablevision, Inc., 562 F.Supp. 543, 545 (W.D.Ky.1982).
The City of Frankfort has doubtless, for whatever reasons, seen fit to make Consolidated’s position in that city very difficult. Consolidated has rigorously pursued legal claims in state and federal courts to seek to indicate its asserted rights. While I concur in the result reached in this case, I find the issues unclear and I fail to find authoritive Kentucky state decisions that confirm the right of municipal ownership and/or operation of a CATV system in Kentucky. See Consolidated Television Service, Inc. v. Leary, 382 S.W.2d 78 (Ky.1964).