City of Kenner Versus Netflix, Inc., and Hulu, LLC

CITY OF KENNER NO. 22-CA-466

VERSUS FIFTH CIRCUIT

NETFLIX, INC., AND HULU, LLC COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 814-168, DIVISION "M"
HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING

May 03, 2023

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Robert A. Chaisson

AFFIRMED
SMC
MEJ
RAC

COUNSEL FOR PLAINTIFF/APPELLANT,
CITY OF KENNER
Joseph M. Bruno, Sr.
Malvern C. Burnett
Joshua C. Joseph
Elvin L. Kistner

COUNSEL FOR DEFENDANT/APPELLEE,
NETFLIX, INC.
Glenn L. M. Swetman
Brandie M. Thibodeaux
Mary A. Reed
Mary Rose Alexander
Robert C. Collins, III
Jean A. Pawlow
Peter E. Davis
Henry Adrian van Seventer

COUNSEL FOR DEFENDANT/APPELLEE,
HULU, LLC
Martin E. Landrieu
Phillip J. Antis, Jr.
Victor Jih
Praatika Prasad

CHEHARDY, C.J.

Plaintiff, the City of Kenner, appeals the trial court’s judgment that sustained

exceptions of no right of action and no cause of action filed by defendants Netflix,

Inc., and Hulu, LLC. For the reasons that follow, we affirm the trial court’s

judgment sustaining the exceptions and dismissing Kenner’s putative class action

lawsuit.

FACTS AND PROCEDURAL HISTORY

This case concerns the application of Louisiana’s Consumer Choice for

Television Act (“CCTA”), La. R.S. 45:1361 et seq., which authorizes subdivisions

of the State to collect franchise fees from certain cable service or video service

providers as defined in the Act.1 Enacted in 2008, the CCTA authorizes the

Secretary of State to issue a certificate of franchise to those providers who

“construct or operate wireline networks in public rights of way.” La. R.S.

45:1364A; La. R.S. 45:1363(4). By centralizing the franchise authority, the CCTA

alleviates the previous scheme in which service providers had been required to

negotiate and obtain separate franchises from each local government subdivision

for use of its public rights of way—a much more laborious process.2

1
In the cable industry, a “franchise” is authorization from a government entity to construct or
operate a cable system in the public rights of way. See 47 U.S.C. § 522(9)-(10). Federal law
allows state and local governments to issue franchises within their jurisdictions. See 47 U.S.C. §§
541(a), 521(3); see also City of Knoxville v. Netflix, Inc., 656 S.W.3d 106, 108 (Tenn. Nov. 22,
2022) (“traditional cable companies, which provide cable television through cable facilities—
e.g., equipment such as transmission lines—located in the public rights-of-way, were the primary
franchise recipients.”).
2
La. R.S. 45:1362 B states:

The Legislature of Louisiana finds that reforming and streamlining the current
system of regulating cable services and video services will relieve consumers of
unnecessary costs and burdens … [and] further finds that a streamlined procedure
for granting and renewing cable service and video service franchises will provide
statewide uniformity to allow functionally equivalent service to compete fairly and
to allow new consumer services to be deployed more quickly.

22-CA-466 1

After a service provider obtains the necessary franchise certificate, “[a] local

governmental subdivision shall allow the holder of a certificate to install, construct,

and maintain a network within public rights of way and shall provide the holder of

a certificate with open, comparable, nondiscriminatory, and competitively neutral

access to the public rights of way.” La. R.S. 45:1374 B. Governmental

subdivisions may enact ordinances in conjunction with the CCTA which allows

them to collect franchise fees from the certificate holders, which fees are not to

exceed 5% of the “holder’s gross revenues.” La. R.S. 45:1366 A.3

On January 22, 2021, Kenner enacted Ordinance Number 11,813, which

provides for the collection of franchise fees pursuant to the CCTA. In pertinent

part, Kenner’s Ordinance states:

That all persons or entities providing cable or video
services to the citizens of the City of Kenner pursuant to a
state-issued certificate of franchise authority as provided
in LSA-R.S. 45:1361 et seq., shall, pursuant to the
provisions of LSA-R.S. 45:1366, pay the City of Kenner a
franchise fee equal to five percent of the cable or video
service provider’s gross revenue, as that term is defined by
the “Consumer Choice for Television Act of 2008,”
derived from operations within the City’s municipal
limits.

At the time that Kenner enacted the Ordinance, La. R.S. 45:1363(14) (2008)

defined “video service” as follows:

“Video service” means video programming services
provided through wireline facilities located at least in part
in the public rights of way without regard to delivery
technology, including Internet protocol technology.
“Video service” shall not include any video programming

3
La. R.S. 45:1366 A provides:

The holder of a certificate may be required, pursuant to an ordinance adopted by
the local governmental subdivision, to pay a franchise fee equal to a specified
percentage of such holder’s gross revenues received from the provision of cable
service or video service to subscribers located within the municipality or
unincorporated areas of the parish and from advertising disseminated through cable
service or video service and home shopping services as allocated under Subsection
D of this Section. The fee shall not exceed five percent of the holder’s gross
revenues. …

22-CA-466 2

provided by a commercial mobile service provider as
defined in this Section or video programming provided as
part of a service that enables users to access content,
information, e-mail, or other services offered over the
public Internet.

Effective May 22, 2022, the Legislature amended La. R.S. 45:1363(14),

which references streaming content offered over the internet, specifically

excluding it from the definition of “video service,” as follows:

“Video service” means video programming services
provided by a video service provider through wireline
facilities located at least in part in the public rights of way
without regard to delivery technology, including internet
protocol technology. Video service shall not include any
of the following:

(a) Video programming provided by a commercial mobile
service provider as defined in this section.
(b) Direct-to-home satellite services as defined in 47
U.S.C. 303(v).
(c) Video programming accessed via a service that enables
users to access content, information, email, or other
services offered over the internet, including streaming
content.

(Emphasis added).

On the same day that Kenner’s City Council enacted the franchise-fee

ordinance in 2021, Kenner filed this putative class action lawsuit on behalf of itself

and all of Louisiana’s political subdivisions similarly situated to collect franchise

fees from defendants Netflix and Hulu. Netflix and Hulu asserted exceptions of no

right of action, arguing that they were not franchise “holders” under the CCTA;

and exceptions of no cause of action, contending that various provisions of the

CCTA do not require streaming service providers to obtain franchise certificates or

pay franchise fees.

The trial court sustained the defendants’ exceptions of no cause of action

and no right of action, dismissing with prejudice Kenner’s lawsuit against them.

The trial court’s Judgment states:

22-CA-466 3

First, the Louisiana Consumer Choice for Television Act
(“the CCTA”) does not confer upon Plaintiff a right of
action or cause of action against Netflix and Hulu.

Second, under the CCTA, a “franchise” “authorizes the
construction and operation of a cable system, or other
wireline facilities used to distribute video programming
services, in the public right of way.” La. R.S. §
45:1363(6). Plaintiff does not allege that either Netflix or
Hulu construct, operate, install, or otherwise maintain any
cable system, wireline facilities, or other infrastructure in
the public right of way. Defendants are therefore not
required to obtain a franchise before they make their
content available to their customers, and Defendants are
not subject to the CCTA.

Third, even if Defendants were otherwise subject to the
CCTA …, Defendants’ video content was and is “provided
solely as part of, and via, a service that enables users to
access content, information, electronic mail, or other
services offered over the public Internet.” La. R.S. §
45:1363(14) (pre-amendment). Defendants’ content is
accessed by their customers over the networks of third-
party Internet service providers, whose service allows
Defendants’ customers to access content over the public
Internet, i.e., the Internet. 4

Kenner now appeals.

LAW AND DISCUSSION

Kenner assigns three errors on appeal: (1) the trial court erred in finding that

the CCTA did not confer on it a right of action or cause of action against Netflix

and Hulu; (2) the trial court erred by finding that Netflix and Hulu are not required

4
The trial court’s Judgment further stated in a footnote:

The Parties agree, and the Court also holds, that Defendants’ content is not “video
service” under the current, post-amendment definition because it is “accessed via a
service that enables users to access content, information, e-mail, or other services
offered over the internet, including streaming content.” See HB276 Act 164,
codified at La. R.S. § 45:1363(14) (effective date May 26, 2022).

In effect, because the Legislature’s 2022 amendment to La. R.S. 45:1363(14) specifically
excludes streaming services like Netflix and Hulu from paying franchise fees, Kenner’s potential
claim for payment of franchise fees against these defendants, were such a claim to exist, would
be foreclosed on the amendment’s May 26, 2022 effective date.

22-CA-466 4

to obtain a franchise before they make their content available to their customers

and that Netflix and Hulu are not subject to the CCTA; and (3) the trial court erred

by finding that Netflix and Hulu’s video content is excluded from the definition of

“video service.”

Assignment of Error No. 1 - Exception of No Right of Action

The peremptory exception of no right of action tests whether the plaintiff has

a real and actual interest in the action. La. C.C.P. art. 927(6). The court assumes

the petition states a valid cause of action for some person and questions whether

the plaintiff is a member of the class that has a legal interest in the subject matter

of the litigation. Succession of Brandt, 21-131 (La. App. 5 Cir. 12/29/21), 334

So.3d 1041, 1045. Determining whether a plaintiff has a right to bring an action

raises a question of law, which requires de novo review on appeal. I E C I, LLC v.

South Central Planning & Dev. Comm’n, Inc., 21-382 (La. App. 5 Cir. 2/23/22),

336 So.3d 601, 609.

Netflix and Hulu argued in their exceptions of no right of action that La.

R.S. 45:1367 B gives political subdivisions a limited right of action to sue for fees

from a franchise “certificate holder,” but it does not authorize a political

subdivision like Kenner to sue to enforce franchise obligations against parties who

do not hold a franchise certificate. They contend that under La. R.S. 45:1363(4),

the franchising authority belongs to the Secretary of State, and only the Secretary

of State can transform a video service provider into a franchise certificate holder.

Permitting a political subdivision to pursue a claim against an entity that does not

hold a franchise certificate circumvents that authority and the very purpose of the

CCTA.

On the other hand, Kenner claims that pursuant to La. R.S. 45:1367 B, it has

a responsibility to its citizens to enforce its own ordinance requiring cable or video

services to apply for a franchise certificate and pay franchise fees. Because Netflix

22-CA-466 5

and Hulu have not applied for such a certificate, Kenner has the right to enforce the

statute and its ordinance.

We disagree. La. R.S. 45:1367 B provides: “Any suit with respect to a

dispute arising out of or relating to the amount of the franchise fee due to a local

governmental subdivision under La. R.S. 45:1366 shall be filed either by the local

governmental subdivision … or by the certificate holder … in a state or federal

court of competent jurisdiction[.]” (Emphasis added). La. R.S. 45:1367 C further

provides that before either party may file suit, “the local governmental subdivision

or certificate holder shall give the other party written notice of any dispute not

resolved in the normal course of business.” (Emphasis added). Each of these

provisions contemplates that CCTA litigation involving a governmental

subdivision would involve claims brought by or against a certificate holder where

the parties disagree as to the fee owed. Neither of these provisions grants the

governmental subdivision the right of enforcement against non-holders of franchise

certificates.

Furthermore, as stated in the CCTA, the Louisiana Legislature intended the

Act to “provide uniform regulation of cable and video franchising.” La. R.S.

45:1362 D. Permitting political subdivisions to enforce the Act’s franchise

requirements against entities that do not hold a franchise certificate would be

decidedly at odds with this stated legislative intent and with additional provisions

of the CCTA. For example, La. R.S. 45:1374 A limits a local governmental

subdivision’s authority to regulate “the holder of a certificate” by granting the

subdivision authority only to establish “reasonable guidelines regarding the use of

PEG access programming streams or channels” or to require the certificate holder

to “register with the local governmental subdivision.” La. R.S. 45:1374 A does not

grant local governmental subdivisions the right to enforce the Act’s provisions by

filing suit against non-holders of certificates.

22-CA-466 6

Kenner concedes that neither Hulu nor Netflix holds a franchise certificate,

and we have found no other provision in the CCTA upon which a political

subdivision like Kenner would be permitted to pursue franchise-fee claims against

parties who do not hold a franchise certificate. Courts in other jurisdictions

addressing this issue likewise have determined that local governmental entities

lack the authority to enforce the provisions of video-service-provider franchise

statutes. See, e.g., Maple Heights v. Netflix, Inc., 2022 WL 17331374, at *5 (Ohio,

Nov. 30, 2022) (“Nothing in the Act indicates that the General Assembly intended

to create a right of remedy for a local government to enforce the video-service-

authorization and franchise-fee requirements of the Act against a business that the

local government thinks ought to be designated as a video-service provider.”).5

Accordingly, we find the trial court correctly determined that Kenner has no

right of action to enforce the provisions of the CCTA against Netflix and Hulu,

who do not hold franchise certificates.

Assignment of Error No. 1 - Exception of No Cause of Action

The function of the exception of no cause of action is to test the legal

sufficiency of the petition by determining whether the law affords a remedy on the

facts alleged in the petition against the particular defendant. Badeaux v. Southwest

Computer Bureau, Inc., 05-0612 (La. 3/17/06), 929 So.2d 1211, 1216-17; Warrant

v. HDI Glob. Ins. Co., 21-570 (La. App. 5 Cir. 5/16/22), 341 So.3d 1249,

5
See also City of New Boston, Tex. v. Netflix, Inc., 565 F.Supp.3d 865, 868-69 (E.D. Tex. Sept.
30, 2021) (finding that the Texas Utility Code gave only the Public Utility Commission the
authority to issue a franchise certificate to a cable service or video service provider, and
individual municipalities had no authority to declare a provider a “holder” of a state-issued
franchise); City of Reno v. Netflix, Inc., 52 F.4th 874, 878 (9th Cir. 2022) (affirming the
dismissal of claims against Netflix and Hulu after finding that the Nevada statute “seems to have
deprived local governments of enforcement powers intentionally” when it vested enforcement of
the statute in state agencies); City of E. St. Louis v. Netflix, Inc., 2022 WL 4448868, at *4 (S.D.
Ill. Sept. 23, 2022) (appeal pending) (finding that Illinois’ Cable and Video Competition Law did
not authorize a local government to bring suits for purported violations; the enforcement was left
to the Attorney General); City of Ashdown, Ark. v. Netflix, Inc., 52 F.4th 1025, 1028 (8th Cir.
2022) (holding that the VSA’s “clear intent to create uniformity across the state would be
undermined if individual municipalities possessed authority to bring enforcement suits
independently of the state body charged with enforcement.”).

22-CA-466 7

1254, writ denied, 22-938 (La. 11/1/22), 349 So.3d 10, and writ denied, 22-1002

(La. 11/1/22), 349 So.3d 5. The issue at the trial of the exception is whether, on the

face of the petition, the plaintiff is legally entitled to the relief sought. I E C I, LLC,

336 So.3d at 611. The petition must set forth material facts upon which the cause

of action is based. La. C.C.P. art. 891 A. All well-pled allegations of fact in the

petition must be accepted as true. I E C I, 336 So.3d at 611 (citing Donnaud’s Inc.

v. Gulf Coast Bank and Trust Co., 03-427 (La. App. 5 Cir. 9/16/03), 858 So.2d 4,

6, writ denied, 03-2862 (La. 1/9/04), 862 So.2d 985). The correctness of

conclusions of law is not conceded for the purposes of ruling on an exception of no

cause of action. Christian Schools, Inc. v. La. High Sch. Athletic Ass’n, 20-0762

(La. App. 1 Cir. 5/18/22), 342 So.3d 1068, 1075, writ denied, 22-1015 (La.

10/12/22), 348 So.3d 78. The exception of no cause of action raises a question of

law subject to de novo review. Id.

Kenner argues that it has stated a cause of action in its petition when it

asserts that Netflix and Hulu are “video service providers” engaged in “video

programming” who are subject to the provisions of the CCTA.6 To support these

6
Kenner’s Petition alleges, in relevant part, that:

 Customers view Netflix’s and Hulu’s video programming – such as television shows,
movies, and documentaries – using an internet-connected device. Internet-connected
devices are electronic devices that have software enabling such devices to receive and
then display Defendants’ video programming, including smart televisions, streaming
media players like Roku or Apple TV, smartphones, tablets, video game consoles, set-top
boxes from cable and satellite providers, Blu-ray players, and personal computers.
 Netflix and Hulu provide video programming to their customers through wireline
facilities located at least in part in the public right-of-way. Neither Netflix nor Hulu
actually provide their customers access to the public internet. Instead, customers receive
an internet connection through an internet-service provider (“ISP”). The internet-service
provider supplies an internet account and a physical means to connect to the internet
(such as a modem), which allows customers to access the internet.
 Netflix’s and Hulu’s customers typically use a broadband internet connection, such as
DSL or fiber optic cable to receive Defendants’ programming. … These broadband
internet connections rely upon wireline facilities located in the public right-of-way to
bring internet service to customers. In turn, this means that Netflix and Hulu provide their
video programming through wireline facilities located at least in part in the public right-
of-way because they use these broadband internet connections in the public right-of-way
to provide their video programming.
 Netflix and Hulu are video-service providers within the meaning of Louisiana’s 2008
Consumer Choice in Television Act, which defines “video service” as “video

22-CA-466 8

allegations, Kenner alleges that “Netflix and Hulu provide video programming to

their customers through wireline facilities located at least in part in the public

right-of-way” and that “Netflix and Hulu are video-service providers within the

meaning of Louisiana’s 2008 Consumer Choice in Television Act.”

In their exceptions of no cause of action, Netflix and Hulu outlined several

reasons why the CCTA does not apply to streaming providers like them. First, they

argue that they are not “video service providers” because they do not construct or

operate their own wireline facilities in the public right of way.

The definitions found in the CCTA provide support for this argument. Under

the CCTA, “video service provider” means any entity providing “video service.”

La. R.S. 45:1363(15). Before the 2022 amendment, “video service” was defined as

“video programming services provided through wireline facilities located at least

in part in the public rights of way without regard to delivery technology, including

Internet protocol technology” but does not include “video programming provided

as part of a service that enables users to access content, information, e-mail, or

other services offered over the public Internet.” La. R.S. 45:1363(14) (2008).7 A

“franchise” that is granted by the Secretary of State “authorizes the construction

and operation of a cable system, or other wireline facilities used to distribute video

programming services, in the public rights of way.” La. R.S. 45:1363(6). “Public

programming services provided through wireline facilities located at least in part in
public rights of way without regard to delivery technology, including Internet protocol
technology. ‘Video service’ shall not include any video programming provided by a
commercial mobile service provider as defined in this Section or video programming
provided as part of a service that enables users to access content, information, e-mail, or
other services offered over the public Internet.” La. R.S. 45:1363(14). This exception
relates to internet service providers. Neither Netflix nor Hulu are internet service
providers. Further, Netflix and Hulu are not commercial mobile service providers as
defined by 47 U.S.C. § 332(d) or La. R.S. 45:1363(5), and Netflix and Hulu are not
providing video programming solely as part of a service that enables users to access
content, information, electronic mail or other service offered over the public Internet.
7
Kenner concedes that the 2022 amendment to the CCTA’s definition of “video service” in La.
R.S. 45:1363(14) unequivocally excludes Netflix and Hulu from its application as of its May 26,
2022 effective date.

22-CA-466 9

right of way” means “the area on, below, or above a public roadway, highway,

street, public sidewalk, alley, or waterway.” La. R.S. 45:1363(12).

Kenner’s petition acknowledges that Netflix’s and Hulu’s customers access

their video services through the customers’ own devices via an internet connection

provided by a third-party internet service provider (ISP), which may or may not

construct or operate its own facilities in the public rights of way, and that Netflix

and Hulu are not internet service providers:

Netflix’s and Hulu’s customers typically use a broadband
internet connection, such as DSL or fiber optic cable to
receive Defendants’ programming. … These broadband
internet connections rely upon wireline facilities located in
the public right-of-way to bring internet service to
customers. In turn, this means that Netflix and Hulu
provide their video programming through wireline
facilities located at least in part in the public right-of-way
because they use these broadband internet connections in
the public right-of-way to provide their video
programming.

(Emphasis added). By tracking the statutory language without alleging specific

facts to support it, Kenner’s statement in its petition—that “Netflix and Hulu

provide their video programming through wireline facilities located at least in part

in the public right-of-way because they use these broadband internet

connections”—constitutes a conclusion of law rather than an allegation of material

fact. Conclusions of law need not be accepted as true for purposes of evaluating an

exception of no cause of action. Christian Schools, Inc., 342 So.3d at 1075.

Moreover, this statement is belied by the petition’s additional factual allegations

regarding the customers’ means of accessing defendants’ content, such as:

Neither Netflix nor Hulu actually provide their customers
access to the public internet. Instead, customers receive an
internet connection through an internet-service provider
(“ISP”). The internet-service provider supplies an internet
account and a physical means to connect to the internet
(such as a modem), which allows customers to access the
internet.

and:

22-CA-466 10

These broadband internet connections rely upon wireline
facilities located in the public right-of-way to bring
internet service to customers.

Reviewing Kenner’s petition in its entirety, we see no material facts to support

Kenner’s conclusory allegations that Netflix and Hulu “provide their video

programming through wireline facilities located at least in part in the public right-

of-way….”

Further, we read the reference to “public rights of way” in the definition of

“video service,” as well as the CCTA’s numerous additional references to public

rights of way, to mean that a “video service provider” must have some nexus

with—distinct from mere usage of—the “wire line facilities located at least in part

in the public rights of way.” Kenner’s petition contains no factual allegations to

suggest that Netflix and Hulu operate or maintain any facilities on public rights of

way. Accordingly, for purposes of evaluating their exceptions of no cause of

action, we find that Netflix and Hulu do not fit within the definition of “video

service providers” who are required to obtain certificates of franchise under the

CCTA.

Other jurisdictions, when interpreting statutory language virtually identical

to the CCTA, similarly have determined that streaming services like Netflix and

Hulu are exempt from these franchise requirements. For example, in City of

Knoxville v. Netflix, Inc., 656 S.W.3d 106, 109 (Tenn. Nov. 22, 2022), the

Supreme Court of Tennessee, responding to a certified question from federal court,

determining that “[t]he Act … ties the franchise-fee obligation to physical

occupation of public rights-of-way in specific localities—consistent with the

principal justification for cable franchising.” The Court concluded that an entity

22-CA-466 11

that does not operate facilities in the public right of way does not fall within the

Act’s definition of a “video service provider.” Id. at 115.8

Second, Netflix and Hulu argue that even if defendants were considered to

be “video service providers,” they fit within the exception found in the definition

of “video service,” La. R.S. 45:1363(14) (2008), which exception states: “ ‘Video

service’ shall not include any video programming provided by a commercial

mobile service provider as defined in this Section or video programming provided

as part of a service that enables users to access content, information, e-mail, or

other services offered over the public Internet.” Because we have already

determined that Neflix and Hulu are not “video service providers” under La. R.S.

45:1363(14) and (15) (2008), we decline to address the parties’ competing

arguments as to whether Netflix and Hulu also fit within the exception as it existed

before the Legislature enacted the 2022 amendment.9

8
See also Maple Heights, 2022 WL 17331374, at *4 (“Because Netflix and Hulu provide online-
streaming services over the public Internet, they are not video-service providers. They do not
need to place their own wires or equipment in the public rights-of-way to provide their
subscribers with programming, and the equipment used to access their services belongs to their
customers, not to them.”); Gwinnett County v. Netflix, Inc., 2023 WL 2398217, at *10 (Ga. Ct.
App., Mar. 8, 2023) (McFadden, J., concurring) (affirming the trial court’s dismissal of claims
asserted by local governments against streaming companies, and noting that the local
governments’ petition did not allege that streaming companies constructed or operated a network
in the public right of way—a necessary allegation to trigger the application of Georgia’s
franchise statute); City of Lancaster v. Netflix, Inc., 2022 WL 1744233, at *8-9 (Cal. Sup. Ct.
Apr. 13, 2022) (rejecting an interpretation of the statute that would require streaming services to
obtain a “construction and operation” franchise where those services did not operate facilities in
the public rights of way).
9
Kenner sets forth a number of reasons why the exclusion in former La. R.S. 45:1363(14) (2008)
applies only to ISPs, not to streaming services. First, Kenner points out that the statutory
language refers to “video programming provided as part of a service …,” but the only service
that Netflix and Hulu provide is video programming; Netflix and Hulu provide none of the other
functions mentioned, such as email access. Thus, according to Kenner, applying this exception to
Netflix and Hulu necessitates the elimination of the “part of” language—an untenable result
where all parts of a statute must be given effect. Second, Kenner argues that Netflix’s and Hulu’s
services are not “offered over the public Internet” because their services are available only to
paying subscribers. According to Kenner, because the exclusion includes the word “public,” and
“public” generally refers to something that is open or available for all, paid video services are not
meant to be excluded from the CCTA’s requirements. Third, Kenner argues that Netflix and
Hulu do not “enable” users to access their services over the public internet – this is a job for
ISPs. For all of these reasons, Kenner argues, the exclusion is meant to apply only to ISPs.

22-CA-466 12

In sum, Kenner’s allegations fail to satisfy the pleading requirements

necessary to state a cause of action against Netflix and Hulu under the CCTA.

Accordingly, we affirm the trial court’s ruling sustaining Netflix’s and Hulu’s

exceptions of no cause of action.

Assignments of Error No. 2 and No. 3

In its second assignment of error, Kenner asserts that the trial court erred in

finding that Netflix and Hulu are not required to obtain a franchise from the

Secretary of State before making their content available to their customers, and that

Netflix and Hulu are not subject to the CCTA. For the reasons expressed in our

discussion of the defendants’ exceptions of no cause of action, we find no merit to

Kenner’s second assignment of error.

In its third assignment of error, Kenner argues that the trial court erred in

finding that Netflix’s and Hulu’s video content is excluded from the definition of

“video service.” This argument is limited to an analysis of the pre-amendment

version of La. R.S. 45:1363(14). Because we already have determined that Netflix

and Hulu do not fit within the definition of “video service provider” under the

former statutory language, however, we decline to address Kenner’s third

assignment of error.

DECREE

The trial court’s judgment granting the exceptions of no right of action and

exceptions of no cause of action, and dismissing with prejudice the claims of the

City of Kenner against Netflix, Inc., and Hulu, LLC, is affirmed.

AFFIRMED

22-CA-466 13

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 3, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-466
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