City of Creve Coeur v. DirecTV - VSPA Fees Appeal

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• Combined Opinion from the Court Add Note # City of Creve Coeur, Missouri, Appellant, vs. DirecTV, LLC, et al., Respondents.

Missouri Court of Appeals

• Citations: None known
• Docket Number: ED113308

• Disposition: AFFIRMED

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Disposition

AFFIRMED

Combined Opinion

In the Missouri Court of Appeals
Eastern District
DIVISION TWO

CITY OF CREVE COEUR, MISSOURI, ) No. ED113308
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
vs. ) Cause No. 18SL-CC02821-01
)
DIRECTV, LLC, ET AL., ) Honorable Ellen H. Ribaudo
)
Respondents. ) FILED: October 14, 2025

Introduction

City of Creve Coeur (Creve Coeur) appeals from the circuit court’s grant of summary

judgment in favor of DirecTV, LLC, Dish Network Corp., Dish Network, L.L.C., and Sling TV,

L.L.C. (collectively, Respondents). Creve Coeur raises three points on appeal. In its first two

points, Creve Coeur argues the circuit court erred in granting summary judgment to Respondents

on its Video Service Provider Act (VSPA) claim because (1) the 2024 amendment to VSPA is not

a retrospective clarification and (2) the ruling extinguished Respondents’ indebtedness to Creve

Coeur for VSP fees in violation of Article III, section 39(5) of the Missouri Constitution. In its

third point, Creve Coeur alleges the circuit court erred in granting summary judgment to

Respondents on its unjust enrichment claim because Creve Coeur presented sufficient evidence to

support its claim and because Respondents did not properly move for summary judgment. We

affirm.
As a preliminary matter, Netflix, Inc. and Hulu, LLC moved for leave to file brief of amici

curiae in support of Respondents. Local Rule 375 permits briefing by amicus curiae with leave of

court, and requires applicants to “concisely state the nature of the applicant’s interest, set forth

facts or questions of law that have not been, or reasons for believing that they will not adequately

be, presented by the parties, and their relevancy to the disposition of the case.” Netflix and Hulu’s

motion fails to set forth facts or questions of law that have not been adequately presented by the

parties. Accordingly, we deny the motion.

Factual and Procedural Background

Enacted in 2007, VSPA replaced the traditional franchise process, whereby cable

companies obtained franchises by negotiating with individual municipalities, with a new system

that required video service providers to obtain single statewide authorization from the Missouri

Public Service Commission to access public rights of way in order to build networks to deliver

video programming. See sections 67.2675-.2714.1 In exchange, video service providers pay the

municipality a video service provider fee (VSP fee).

The original definition of “video service” read:

[T]he provision of video programming provided through wireline facilities located
at least in part in the public right-of-way without regard to delivery technology,
including Internet protocol technology whether provided as part of a tier, on
demand, or a per-channel basis. This definition includes cable service as defined
by 47 U.S.C. Section 522 (6), but does not include any video programming provided
by a commercial mobile service provider defined in 47 U.S.C. Section 332 (d), or
any video programming 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.

Section 67.2677(14) (Cum. Supp. 2007).

1
All section references are to RSMo (2016), unless otherwise indicated.

2
In July of 2018, more than ten years after VSPA’s enactment, Creve Coeur, on behalf of

itself and other similarly situated municipalities, filed its petition against Respondents, alleging

that VSPA applied to Respondents and that they had not been paying VSP fees. Count I asked the

circuit court to declare that Respondents provide “video service” within the meaning of VSPA and

that Respondents failed to comply with VSPA and owe VSP fees, order an accounting of all monies

owed by Respondents to class members and lastly enjoin them from engaging in business in the

boundaries of class members without paying VSP fees. Count II sought a declaration that

Respondents were unjustly enriched due to their failure to pay VSP fees and an order for

accounting and injunction. Count III sought follow-on relief from Counts I or II for back fees,

interest, and penalties Respondents owed each class member.

Respondents initially moved to dismiss the claims based in part on the “public internet”

exception to the definition of “video service.” The circuit court found that Creve Coeur alleged

sufficient facts to support its allegations that Respondents do not provide their streaming over the

public internet because it is done in part through direct ISP2-to-subscriber connections, bypassing

the public internet. The court also noted the “solely as part of and via a service” statutory language

and found that Respondents’ video programming was not “part of” a broader service, but rather it

was the entirety of their service. The circuit court concluded that Creve Coeur had “alleged facts

sufficient to support its allegations that [Respondents] are Video Service Providers under the

VSPA” and denied the motions on December 30, 2020.

On March 15, 2024, all parties moved for summary judgment. However, prior to the circuit

court ruling on the motions, VSPA’s definition of “video service” was amended to read:

[T]he provision, by a video service provider, of video programming provided
through wireline facilities located at least in part in the public right-of-way without
regard to delivery technology, including internet protocol technology whether
2
ISP is an abbreviation for internet service provider.

3
provided as part of a tier, on demand, or on a per-channel basis. This definition
includes cable service as defined by 47 U.S.C. Section 522 (6), but does not include
any video programming provided by a commercial mobile service provider defined
in 47 U.S.C. Section 332 (d), or any video programming provided solely as part of
and accessed via a service that enables users to access content, information,
electronic mail, or other services offered over the public internet, including
streaming content.

Section 67.2677(14) (Cum. Supp. 2024) (effective August 28, 2024) (original language stricken;

new language bolded). On July 25, 2024, the circuit court stayed discovery pending the resolution

of briefing on the impact of the VSPA amendment.

On December 30, 2024, the circuit court granted summary judgment to Respondents,

finding that the amendment “did not effectuate a substantive change of law, but rather clarified the

VSPA’s original meaning by resolving any ambiguities in the VSPA’s ‘video service’ definition,”

and that the amendment foreclosed all of the class’s claims. This appeal follows.

Standard of Review

We review the grant of summary judgment de novo. Green v. Fotoohighiam, 606 S.W.3d

113, 115 (Mo. banc 2020). “Summary judgment is only proper if the moving party establishes

that there is no genuine issue as to the material facts and that the movant is entitled to judgment as

a matter of law.” Id. (internal quotation omitted). We view the record “in the light most favorable

to the party against whom summary judgment was entered, and that party is entitled to the benefit

of all reasonable inferences from the record.” Id. at 116 (internal quotation omitted). We review

questions of law de novo. Orthopedic Ambulatory Surgery Ctr. of Chesterfield, LLC v. Sharpe

Holdings, Inc., 675 S.W.3d 574, 578-79 (Mo. App. E.D. 2023).

Discussion

Creve Coeur raises three points on appeal. In Point I, it argues the circuit court erred in

granting summary judgment to Respondents on its VSPA claims because the 2024 amendment

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materially and prospectively changed the original statute. Creve Coeur alleges in Point II the

circuit court erred in granting summary judgment to Respondents on its VSPA claims because the

ruling violated the Missouri Constitution’s prohibition against extinguishing indebtedness to

municipalities. Lastly, in Point III, Creve Coeur claims the circuit court erred in granting summary

judgment to Respondents on its claim of unjust enrichment because it presented sufficient evidence

in support of its claim, and because Respondents did not properly move for or support summary

judgment in their favor.

Point I – Clarification or Substantive Change

While it is ordinarily presumed that the legislature intended to effect some change to the

existing law when it amends a statute, “[t]he purpose of a particular change may be to clarify”

rather than substantively change it. State ex rel. Hillman v. Beger, 566 S.W.3d 600, 607 (Mo. banc

2019). One such instance of clarification is when the legislature amends a statute in response to

the judiciary’s interpretation of that statute. See Andresen v. Bd. of Regents of Missouri W. State

Coll., 58 S.W.3d 581, 589 (Mo. App. W.D. 2001). Because clarifications are not substantive

changes, they do not raise retrospectivity concerns. See Osage Outdoor Advert., Inc. v. State

Highway Comm’n of Missouri, 699 S.W.2d 791, 793-94 (Mo. App. W.D. 1985) (addressing in

dicta appellant’s argument that amendment was unconstitutionally retrospective, explaining that

retrospective application of the amendment was unnecessary because it was a clarification of

existing law).

In Andresen, the plaintiffs, active and retired faculty members of Missouri Western State

College (MWSC), filed a declaratory judgment action alleging they “were denied retirement

income because MWSC limited or capped the amount of sick leave the employees could earn prior

to July 1, 1992.” 58 S.W.3d at 585. There, the plaintiffs asked the court to remove the cap from

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the prior years, which would allow them credit for additional sick leave earned prior to the 1992-

93 academic year. Id. The court barred their relief due to the statute of limitations and further

held that section 36.350, which governs sick and annual leave for state agencies, did not apply to

academic institutions. Id.

On appeal, the plaintiffs argued that conflict existed between sections 174.120 and

174.140, which jointly gave state colleges and universities the discretion to control and manage

the college and fix employee compensation, and section 36.350, and urged the court to apply

section 36.350 to state universities because the legislature did not expressly exclude academic

institutions from Chapter 36 prior to 1996. Id. at 588-89. The plaintiffs claimed the conflict arose

from the terms “state agency” because they were not defined under chapter 36 until 1996. Id. at

588. The court provided a historical overview of the relevant statutes and noted that although

section 36.350 was amended in 1979 to apply to all state agencies, the legislature provided no

definition of “state agency.” Id. Following an Attorney General’s Office advisory opinion

concluding that state colleges were state agencies under section 36.350, a Supreme Court of

Missouri holding applying the term “agency,” as used in the Missouri Administrative Procedures

Act, to state universities and colleges, and a Western District opinion, the legislature responded in

1996 by amending Chapter 36 to define “agency,” “state agency,” or “agency of the state,” as a

“department, board, commission or office of the state except for offices of the elected officials, the

general assembly, the judiciary, and academic institutions.” Id. at 588-89 (emphasis in original)

(internal citations omitted).

The Andresen court concluded that the 1996 amendment to Chapter 36 resolved any

conflict that may have existed between sections 174.120, 174.140, and 36.350, holding that “[t]he

legislature made it crystal clear that it intended to exclude academic institutions from [Chapter 36]

6
as represented through its express language contained in the definitional section[.]” Id. at 589.

The court rejected the plaintiffs’ argument that Chapter 36 applied to them from 1979 through

1992, concluding that the amendment adding a definition “was intended only to clarify an existing

law and the legislature did not mean to include academic institutions” prior to the amendment. Id.;

see also Mann v. McSwain, 526 S.W.3d 287, 292 (Mo. App. W.D. 2017) (noting “a statutory

amendment, especially one that simply involves adding a definition to a statute, can be used to

clarify and not to change” (internal quotation omitted)).

This case is strikingly similar to Andresen. Here, Creve Coeur seeks VSP fees it argues

accrued prior to the August 2024 amendment because the definition did not previously specifically

exclude streaming services. Creve Coeur’s position is undermined by the plain language of the

amendment, which effected minor changes that did not substantively alter the description of

excluded content. See Andresen, 58 S.W.3d at 589. The legislature’s intent to clarify section

67.2677 is evidenced by the narrowly tailored changes to the statute. See Osage Outdoor Advert.,

699 S.W.2d at 793 (holding amendment to definitional statute to specifically exclude “railroad

tracks and minor sidings” from its definition of “commercial or industrial activities” to be a

clarification).

We conclude the amendment to the definition of “video service” was intended only to

clarify VSPA and that the legislature did not intend to include streaming content prior to the August

2024 amendment. This is clear from the language of the statute and is consistent with the Western

District’s holding in Andresen. Accordingly, the circuit court did not err in granting summary

judgment to Respondents as they were entitled to judgment as a matter of law. Point denied.

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Point II – Indebtedness to Municipalities

The Missouri Constitution provides that “[t]he general assembly shall not have power: . . .

[t]o release or extinguish or to authorize the releasing or extinguishing, in whole or in part, without

consideration, the indebtedness, liability or obligation of any corporation or individual due this

state or any county or municipal corporation.” Mo. Const. art. III, section 39(5). Creve Coeur

must show (1) that Respondents “owed an indebtedness, liability, or obligation” to it prior to the

amendment, and (2) that the amendment “extinguished that indebtedness, liability, or obligation

without consideration.” See St. Louis Cnty. v. Prestige Travel, Inc., 344 S.W.3d 708, 712 (Mo.

banc 2011). “[I]t is essential to determine whether the statutes as they existed prior to the

enactment” of the amendment imposed an obligation on Respondents. Id. at 713.

Creve Coeur’s argument fails at the first element. As set forth above, VSPA never applied

to streaming content. Neither the amendment nor the circuit court’s judgment extinguished an

indebtedness because there was no indebtedness to extinguish. Point denied.

Point III – Unjust Enrichment

Appellate courts “will affirm the grant of summary judgment on any legal theory supported

by the record, whether or not it was the basis relied upon by the trial court.” Ross v. Scott, 593

S.W.3d 627, 630 (Mo. App. E.D. 2019) (internal quotation omitted). Courts will not give equitable

relief “when doing so would clearly contravene the intent and language of the legislature.” Est. of

Mickels, 542 S.W.3d 311, 314 (Mo. banc 2018).

Creve Coeur argues that by using its public right-of-way without compensation,

Respondents have been unjustly enriched. Such relief would contravene the legislature’s intent.

See id. The legislature, through VSPA, decided who must compensate municipalities for the use

8
of their public rights-of-way. Respondents, insofar as they provide streaming content, are not

video service providers and are not obligated to pay VSP fees. Point denied.

Conclusion

For the reasons set forth above, we affirm the judgment of the circuit court.

John P. Torbitzky, C.J., concurs.
Michael S. Wright, J., concurs.

9