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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-11397
_____________________
AT&T COMMUNICATIONS OF THE
SOUTHWEST, INC.; ET AL.,
Plaintiffs,
AT&T COMMUNICATIONS OF THE
SOUTHWEST, INC.;
TAYLOR COMMUNICATIONS, INC.,
Plaintiffs-Appellees,
versus
CITY OF DALLAS, TEXAS,
Defendant,
SOUTHWESTERN BELL TELEPHONE
COMPANY,
Appellant.
________________________________
CAPROCK COMMUNICATIONS CORP.;
GOLDEN HARBOR OF TEXAS, INC.;
WESTEL, INC.,
Plaintiffs-Appellees,
versus
CITY OF DALLAS, TEXAS,
Defendant,
SOUTHWESTERN BELL TELEPHONE COMPANY,
Appellant.

__________________________________
SPRINT COMMUNICATIONS COMPANY, LP,
Plaintiff-Appellee,
versus
CITY OF DALLAS, TEXAS,
Defendant,
SOUTHWESTERN BELL TELEPHONE COMPANY,
Appellant.
_________________________________________________________________
Appeals from the United States District Court for the
Northern District of Texas
_________________________________________________________________
March 15, 2001
Before HILL,* JOLLY, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Southwestern Bell Telephone Company ("Southwestern Bell")
appeals the district court's grant of summary judgment for a number
of telecommunications companies wishing to enter into the local
telephone market in Dallas. At this point, all parties agree that
this case, involving a Dallas city ordinance imposing fees and
restrictions on local telephone providers, is moot, because the
ordinance has been preempted by an intervening Texas statute.
Moreover, the ordinance has been repealed. The one remaining issue
is whether this court has appellate jurisdiction, and, if so,
whether to vacate the district court's opinion. We hold that we
* Circuit Judge of the Eleventh Circuit, sitting by
designation.
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have jurisdiction over this appeal. We vacate the district court's
judgment as moot, and remand the case with a direction to dismiss
the complaint with prejudice.
I
This suit arises from the federal deregulation of the
telecommunications industry, and the attempt to create competition
in local telephone markets. The Federal Telecommunications Act of
1996 ("FTA"), 47 U.S.C. § 251(c)(3), requires existing local
telephone companies, known as incumbent local exchange carriers
("ILECs"), to resell their local services or lease their network
elements on an unbundled basis to competitive local exchange
carriers ("CLECs") that seek to provide local telecommunications
services. When CLECs attempted to enter the local telephone market
in Dallas, the City of Dallas imposed franchise conditions on the
CLECs and increased right-of-way fees on all local telephone
providers. Failure to obtain a franchise or pay fees constituted
a violation of city ordinance.
The individual CLECs and ILECs filed separate suits against
the city of Dallas, contending that the FTA preempts Dallas' right
to impose conditions regulating local telephone service and to
charge fees beyond those needed for direct reimbursement. The
district court consolidated all the cases, and granted preliminary
injunctions to the CLECs, preventing Dallas from conditioning a
franchise on anything other than compliance with the City's
reasonable regulations concerning its rights-of-way. The court
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then granted summary judgment, first for AT&T Communications of the
Southwest, Inc. ("AT&T"), and then for the other CLECs, holding
that a CLEC does not "use" a right of way under section 523 of the
FTA by leasing the unbundled network elements of an ILEC, and is
therefore not responsible for municipal fees. Southwestern Bell,
one of the two ILECs in this case, appeals, arguing that the
district court misinterpreted the term "use" in the context of
section 523 of the FTA as a whole. In the meantime, the state of
Texas enacted Texas Local Government Code § 283, which preempted
the Dallas city ordinance.
II
In this essentially mooted appeal, we must briefly address the
issue of appellate jurisdiction before we can consider a remand of
this case. Sprint Communications Company, another of the CLECs,
contends that Southwestern Bell does not have standing to bring
this appeal, because it has no cognizable legal interest in the
district court's judgment. Because both mootness and standing
implicate this court's Article III jurisdiction, we could assume,
without deciding, that Southwestern Bell had standing to appeal in
order to consider the mootness question. Arizonans for Official
English v. Arizona, 520 U.S. 43, 66-67 (1997). We are convinced,
however, that the district court's ruling on "use" of the right of
way directly impacts Southwestern Bell, and is sufficient to confer
standing. We also find that the order entered by the district
court removing AT&T as a "consolidated plaintiff of record" did not
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constitute a severance, and thus, the judgment was not final and
appealable under Federal Rule of Civil Procedure 54(b).
Southwestern Bell's appeal of the judgment in favor of AT&T was
therefore timely. Finally, we note that although a motions panel
previously denied Southwestern Bell's motion to vacate, we can
consider it on appeal, and "overturn it where necessary." Mattern
v. Eastman Kodak, Co., 104 F.3d 702, 704 (5th Cir. 1997).
The Dallas ordinance that generated this case was repealed
pursuant to a Texas statute that preempts any future similar city
ordinances. Tex. Local Gov't Code § 283. As all parties
acknowledge, the statute and repeal of the ordinance render this
case moot. See AT&T Communications of the Southwest, Inc. v. City
of Austin, 235 F.3d 241, 243 (5th Cir. 2000) (finding that repeal
of a similar ordinance and the inability to collect past municipal
fees caused mootness in a virtually identical case). AT&T urges
that, if we find jurisdiction and hold that this appeal is moot, we
should simply dismiss this appeal and allow the district court's
opinion and judgment to stand. We will not do that. When a case
becomes moot, vacatur of the district court's opinion and judgment
is the appropriate course to follow "as a means of avoiding the
unfairness of a party's being denied the power to appeal an
unfavorable judgment." Goldin v. Bartholow, 166 F.3d 710, 719 (5th
Cir. 1999). Southwestern Bell did not moot this case by voluntary
action. See City of Austin, 235 F.3d at 244 (noting that vacatur
is not appropriate when the party seeking relief caused the
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mootness). We therefore VACATE the district court's judgments and
REMAND the case to the district court, directing it to dismiss the
case as moot.
VACATED and REMANDED with instructions.
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