Americable Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271 (D.C. Cir. 1997). · Go Syfert
Americable Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271 (D.C. Cir. 1997). Cases Citing This Book View Copy Cite
119 citation events (110 in the last 25 years) across 3 distinct courts.
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At page 1274 Applying procurement statutes to government contracting decisions56 citing casesholding that summary judgment "ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery’ ” (quoting First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988))26 citing courts put it this way · 44 listed here
  • Gilliard v. Gruenberg, No. 2016-2007 (D.D.C. Mar. 26, 2018).published 2 cites
    ([S]ummary judgment ordinarily is proper only after the plaintiff has been given adequate time for discovery.)
  • Gilliard v. Martin Gruenberg, Chairman, Fed. Deposit Ins. Corp., 302 F. Supp. 3d 257 (D.C. Cir. 2018).published
    ([S]ummary judgment ordinarily is proper only after the plaintiff has been given adequate time for discovery.)
  • Suarez v. Compass Coffee LLC, No. 2025-0089 (D.D.C. Nov. 3, 2025).published
    ([S]ummary judgment ordinarily is proper only after the plaintiff has been given adequate time for discovery.” (cleaned up))
  • Ho v. Barr, No. 2020-0912 (D.D.C. Sept. 17, 2022).published
    “summary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Boser v. Keramati, No. 2022-0513 (D.D.C. Aug. 25, 2022).published 2 cites
    “summary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Zorgani v. Dist. of Columbia, No. 2017-2360, 2022 WL 1491133 (D.D.C. May 11, 2022).published
    ([S]ummary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery.’” (quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988)))
  • Lapotsky v. McCarthy, No. 2020-0093 (D.D.C. Mar. 22, 2022).published
    “summary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Wheeler v. Am. Univ., No. 2020-2735 (D.D.C. Jan. 18, 2022).published
    “summary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Horton v. Espindola, No. 2017-1230 (D.D.C. Aug. 8, 2018).published
    (stating that “summary judgment ordinarily is proper only after the plaintiff has been given adequate time for discovery” (internal quotation marks and citation omitted))
  • Tyson v. Brennan, No. 2016-1678 (D.D.C. Sept. 27, 2017).published
    “summary judgment ordinarily ‘is proper only after the plaintiff [(here, Tyson)] has been given adequate time for discovery”
Show 34 more citing cases
  • Williams v. Donovan, 219 F. Supp. 3d 167 (D.D.C. 2016).published
    The Court concludes that the Department’s motion for summary judgment is premature, and “declines, in its discretion, to entertain the [Department’s] motion for summary judgment before allowing for a period for discovery.” White, 888 F.Sup…
  • Coulibaly v. Kerry, 213 F. Supp. 3d 93 (D.D.C. 2016).published
    Cir. 2003) (explaining that summary judgment “ordinarily” is proper only after discovery (quoting Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C.
  • Markowicz v. Johnson, No. 2015-1335 (D.D.C. Sept. 1, 2016).published 2 cites
    Cir. 2003) (explaining that summary judgment “ordinarily” is proper only after discovery (internal quotation marks omitted) (quoting Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C.
  • Wanda Savage v. Sylvia Burwell, No. 2015-0791 (D.D.C. Aug. 3, 2016).published
    “summary judgment . . . ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Johnson v. United States Gov't, 174 F. Supp. 3d 500 (D.D.C. 2016).published
    Automated Printing Servs., 338 F.3d 1024, 1032 (D.C.Cir.2003) (explaining that summary judgment “ordinarily” is proper only after discovery (internal quotation marks omitted) (quoting Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271,…
  • Kemp v. Eiland, 139 F. Supp. 3d 329 (D.D.C. 2015).published
    (As we have stated before, summary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery.’)
  • Wilson v. Hunam Inn, Inc., 126 F. Supp. 3d 1 (D.D.C. 2015).published
    (summary judgment ordinarily is proper only after the [P]laintiff has been given adequate time for discovery)
  • Little v. Com. Audio Assocs., Inc., 81 F. Supp. 3d 58 (D.D.C. 2015).published
    While pre-discovery grants of summary judgment are generally disfavored, Americable Int’l., Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C.Cir.1997), courts may follow that course if the necessity of discovery is not demonstrated.
  • Coleman v. Allstate Ins. Co., 80 F. Supp. 3d 5 (D.D.C. 2015).published
    (As we have stated before, summary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery.’)
  • Jones v. Lattimer, 29 F. Supp. 3d 5 (D.D.C. 2014).published
    “As the Supreme Court and this Circuit have repeatedly held, summary judgment is ordinarily appropriate only after the plaintiff has been given an adequate opportunity to conduct discovery.” McWay v. LaHood, 269 F.R.D. 35, 39 (D.D.C.2010);…
  • Coleman v. Napolitano, 19 F. Supp. 3d 126 (D.D.C. 2014).published
    “As the Supreme Court and this Circuit have repeatedly held, summary judgment is ordinarily appropriate only after the plaintiff has been given an adequate opportunity to conduct discovery.” McWay v. LaHood, 269 F.R.D. 35, 39 (D.D.C.2010);…
  • Ryan-White v. Bryson, 922 F. Supp. 2d 19 (D.D.C. 2013).published
    “As the Supreme Court and this Circuit have repeatedly held, summary judgment is ordinarily appropriate only after the plaintiff has been given an adequate opportunity to conduct discovery.” McWay v. LaHood, 269 F.R.D. 35, 39 (D.D.C.2010);…
  • McNair v. Gov't of the Dist. of Columbia, 903 F. Supp. 2d 71 (D.D.C. 2012).published
    In addition, “Nummary judgment ‘ordinarily is proper only after the plaintiff has been given adequate time for discovery.’ ” Information Handling Services, Inc. v. Defense Automated Printing Services, 338 F.3d 1024, 1032 (D.C.Cir.2003) (qu…
  • White v. Vilsack, 888 F. Supp. 2d 93 (D.D.C. 2012).published
    (stating that “summary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery’)
  • Brewer v. Hr Policy Ass'n, 887 F. Supp. 2d 118 (D.D.C. 2012).published
    It is well established in this Circuit that summary judgment “ordinarily ‘is proper only after the [non-moving party] has been given adequate time for discovery.’ ” Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C.Cir.1997…
  • Feldman v. Cent. Intelligence Agency, 797 F. Supp. 2d 29 (D.D.C. 2011).published
    McWay v. LaHood, 269 F.R.D. 35, 39 (D.D.C.2010) (citing Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C.Cir.1997)).
  • Staropoli v. Potter, No. 2009-1766 (D.D.C. May 25, 2011).published
    McWay v. LaHood, 269 F.R.D. 35, 39 (D.D.C. 2010) (citing Americable Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271, 1274 (D.C.
  • STAROPOLI v. Donahoe, 786 F. Supp. 2d 384 (D.D.C. 2011).published
    McWay v. LaHood, 269 F.R.D. 35, 39 (D.D.C.2010) (citing Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C.Cir.1997)). 3.EEOC Administrative Review Procedures The EEOC is responsible for investigating and adjudicating formal…
  • Stewart v. Gates, 786 F. Supp. 2d 155 (D.D.C. 2011).published 2 cites
    Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). “[S]ummary judgment is ordinarily appropriate only after the plaintiff has been given an adequate opportunity to conduct discovery.” McWay v. LaHood, 269…
  • Moses v. Walker, No. 2006-1712 (D.D.C. Mar. 31, 2011).published
    “ordinarily ‘is proper only after the plaintiff has been given adequate discovery”
  • Moses v. DODARO, 774 F. Supp. 2d 206 (D.D.C. 2011).published
    “ordinarily ‘is proper only after the plaintiff has been given adequate discovery”
  • McWay v. Lahood, No. 2009-1541 (D.D.C. Aug. 9, 2010).published
    See, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C.
  • Hawkins v. Donovan, No. 2009-1788 (D.D.C. July 22, 2010).published
    “ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • 1443 Chapin Street, Lp v. Pnc Bank, Nat'l Ass'n, 258 F.R.D. 186 (D.D.C. 2009).published
    “ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Berliner Corcoran & Rowe LLP v. Orian, 563 F. Supp. 2d 250 (D.D.C. 2008).published
    “ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Scott v. Off. of Alexander, 522 F. Supp. 2d 262 (D.D.C. 2007).published
    “ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Tabb v. Dist. of Columbia, 477 F. Supp. 2d 185 (D.D.C. 2007).published
    “summary judgment ordinarily 'is proper only after the plaintiff has been given adequate time for discov-eiy”
  • Globalaw Ltd. v. Carmon & Carmon Law Off., 452 F. Supp. 2d 1 (D.D.C. 2006).published
    “ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Nat. Resources Def. Council v. Johnson, 422 F. Supp. 2d 105 (D.D.C. 2006).published
    Because summary judgment is inappropriate until the plaintiff has had an opportunity for discovery, Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C.Cir.1997), the court treats the defendant's motion as a motion to dismiss…
  • Powell v. Castaneda, 390 F. Supp. 2d 1 (D.D.C. 2005).published
    Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C.Cir.1997). 4 .
  • Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024 (D.C. Cir. 2003).published 3 cites
    “ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery”
  • Geter v. United States Gov't Publ'g Off., 268 F. Supp. 3d 34 (D.D.C. 2017).published
    (holding that summary judgment "ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery’ ” (quoting First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988)))
  • Craig v. Metro. Police Dep't, 881 F. Supp. 2d 26 (D.D.C. 2012).published
    (recognizing that "summary judgment ordinarily is proper only after the plaintiff has been given adequate time for discovery” (internal quotations omitted))
  • Seed Co. Ltd. v. Westerman, 840 F. Supp. 2d 116 (D.D.C. 2012).published
    (holding that neither the Circuit nor the district court was “in a position to decide as a matter of law whether there [was] a genuine dispute ... because the district court did not permit [the plaintiff] any discovery b…)
At page 1272 discussing 10 U.S.C. § 2462 and 32 C.F.R. § 169a.4(d)1 citing case1 citing court put it this way
At page 1276 “the defendant's motionwas in the alternative for summary judgment and ... the parties had the opportunity to submit and submitted materials in support and in opposition.”0 citing cases5 citing courts quote it · passage not found verbatim in the opinion (83%)
    Other citing cases3 with no pin cite or quoted language on record
    Retrieving the full opinion text from the archive…
    AMERICABLE INTERNATIONAL, INC., Appellant,
    v.
    DEPARTMENT OF NAVY, Et Al., Appellees; AMERICABLE INTERNATIONAL, INC., Appellant, v. DEPARTMENT OF NAVY, Et Al., Appellees; AMERICABLE INTERNATIONAL, INC., Appellant, v. DEPARTMENT OF NAVY, Et Al., Appellees; AMERICABLE INTERNATIONAL, INC., Appellant, v. DEPARTMENT OF NAVY, Et Al., Appellees
    96-5050, 96-5131, 96-5132 and 96-5133.
    Court of Appeals for the D.C. Circuit.
    Nov 21, 1997.
    Published opinion
    129 F.3d 1271
    Robert P. Parker argued the cause for the appellant. Warren B. Rudman, Carl W. Hampe and G. Lindsay Simmons, Washington, DC, were on brief., Keith V. Morgan, Assistant United States Attorney, argued the cause for the appellees. Mary Lou Leary, United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, Washington, DC, were on brief.
    Wald, Henderson, Garland.
    Cited by 84 opinions  |  Published
    1 passage pin-cited by 1 case
    Pinpoint authority: bottom 60%
    Citer courts: D.C. Circuit (1)

    Opinion for the court filed by Circuit Judge HENDERSON.

    KAREN LECRAFT HENDERSON, Circuit Judge:

    Amerieable International, Inc. (America-ble), a cable television operator, appeals the district court’s summary judgments in four actions to enjoin the Department of the Navy (Navy) from operating an “in-house” cable television system in four Navy-owned communities previously served by Amerieable. In each action, Amerieable asserted violations of federal procurement law, the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq., (Cable Act) and the First Amendment to the United States Constitution. For the reasons set out below, we affirm the district court’s judgments on the Cable Act and First Amendment claims and reverse the judgments on the procurement claims.

    In 1986 Amerieable won a competitive bid to build and maintain a cable system serving various Navy facilities in the San Diego area under a nonexclusive franchise agreement. Under the agreement Amerieable provided service to a number of Navy residential complexes within the franchise area and received compensation therefor from common funds derived from each facility’s rental payments. In 1988 service was extended, at the Navy’s request, to its nearby Marine Corps Recruit Depot (MCRD).

    In 1991 the Navy solicited bids for development of a satellite/master antenna television system (SMATV) to provide cable service to its enlisted quarters at MCRD. [1] The[*1273] new system began service in 1992 and Amer-ieable’s group subscriptions at the affected MCRD residences were canceled at that time. The Navy later decided to contract for similar SMATV service at the “bachelor quarters,” high-density residential facilities housing temporarily assigned unmarried Navy personnel, located at three other San Diego area sites: North Island, the Long Beach Naval Station and the San Diego Naval Submarine Base, all of which were then served by Amerieable’s system. No contracts have yet been entered for those locations. [2]

    Americable filed four actions in the district court seeking declaratory, injunctive and mandamus relief on the grounds that the conversion to SMATV at each of the four locations violated, inter alia, federal procurement regulations, the Cable Act and Americable’s First Amendment right of free speech. By order and memorandum opinion filed February 8, 1996 the district court granted the Navy’s motion to dismiss or in the alternative for summary judgment in the action challenging the cable conversion at North Island. Americable Int’l, Inc. v. United States Dep’t of the Navy, 931 F.Supp. 1 (D.D.C.1996). On April 17, 1996 the court issued unpublished memorandum opinions and judgments granting similar motions in the other three actions. Americable filed appeals in each action. Because the parties submitted evidence and statements of material facts pursuant to Local Rule 108(h) [3] and because the district court expressly cited the absence of record evidence in its North Island memorandum opinion, 931 F.Supp. at 3, we construe the district court’s decision in that action as having granted summary judgment. In addition, as the district court dismissed the complaints in the other three actions “for each of the reasons set forth in” the North Island opinion, [4] we construe the other three decisions in like manner. [5] Accordingly, in reviewing all four decisions, we “must grant the appellant[ ] the benefit of all reasonable evidentiary inferences that can be drawn in [its] favor and can uphold the sum[*1274] mary judgment only where there is no genuine issue of material fact, and, viewing the evidence in the light most favorable to the nonmoving party, the movant is entitled to prevail as a matter of law.” Beckett v. Air Line Pilots Ass’n, 59 F.3d 1276, 1279 (D.C.Cir.1995) (internal quotations omitted). We apply this standard to each of America-ble’s claims in turn.

    First, Americable asserts that the Navy’s SMATV conversion at each location violates statutory and regulatory procurement requirements. The Congress has directed that

    the Secretary of Defense shall procure each supply or service necessary for or beneficial to the accomplishment of the authorized functions of the Department of Defense (other than functions which the Secretary of Defense determines must be performed by military or Government personnel) from a source in the private sector if such a source can provide such supply or service to the Department at a cost that is lower (after including any cost differential required by law, Executive order, or regulation) than the cost at which the Department can provide the same supply or service.

    10 U.S.C. § 2462(a). To implement this mandate the Department of Defense has promulgated a regulation requiring:

    When performance by a commercial source is permissible, a comparison of the cost of contracting and the cost of in-house performance shall be performed to determine who shall provide the best value for the Government, considering price and other factors included in the solicitation.

    32 C.F.R. § 169a.4(d). Americable asserts that the Navy violated both the statute and the regulation by failing to conduct a cost comparison before deciding to establish an “in-house” cable system. The Navy maintains that it never moved the cable service “in-house” but simply entered into private contracts for the installation and operation of the SMATV system. If the Navy is correct, there may well be no genuine issue of material fact with respect to the applicability § 2462 to this case. On the other hand, Americable contests the Navy’s characterization of the conversion, asserting that substantial Navy personnel will be required to operate and maintain the programing delivery system now operated and maintained by Americable. Unfortunately, neither we nor the district court are in a position to decide as a matter of law whether there is a genuine dispute here because the district court did not permit Americable any discovery before issuing its ruling. Although Americable cited the need for discovery, inter alia, to “find out what the nature of the service is going to be,” Tr. of 2/27/95 hearing at 48; see also id, at 30-31, 36, the district court granted summary judgment without permitting any. As a consequence, there is no evidence in the record as to who will perform those functions that may be necessary to “operate” and “maintain” the new system and any inferences that exist must be construed in the appellant’s favor.

    Under these circumstances, it was inappropriate for the district court to grant summary judgment without first giving Am-erieable a chance to conduct discovery to determine precisely what services Defense Department personnel would be performing after acquiring the SMATV system and whether those services were sufficiently substantial to invoke the mandate of § 2462(a). As we have stated before, summary judgment ordinarily “is proper only after the plaintiff has been given adequate time for discovery.” First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C.Cir.1988); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (summary judgment appropriate only “after adequate time for discovery”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (plaintiff must have “a full opportunity to conduct discovery”). If after discovery the district court determines that the relevant services are no more than those asserted by the Navy in this court, summary judgment may well be in order. If something more turns out to have been envisioned, more difficult line-drawing may be required. But neither is appropriate, or possible, at this stage of the proceedings.

    Americable next asserts that the Navy’s conversion to SMATV violates section[*1275] 541(a)(1) and section 541(a)(4)(A) of the Cable Act, which, Amerieable maintains, were intended to prevent cable providers from “cherry-picking” only the most lucrative portions of a cable franchise area. We do not agree with Americable’s construction of either provision’s meaning. Section 541(a)(4)(A) does not, as Amerieable contends, require that cable providers extend service “throughout the franchise area,” see Appellant’s Br. at 31, but instead imposes a specific duty on the franchising authority that “[i]n awarding a franchise, [it] shall allow the applicant’s cable system a reasonable period of time to become capable of providing cable service to all households in the franchise area.” 47 U.S.C. § 541(a)(4)(A). There is no evidence, and Amerieable has never claimed, that the Navy afforded it too little time to develop its cable system throughout the San Diego franchise area. Nor can we accept Amerieable’s contention that the Navy violated section 541(a)(1) of the Cable Act, which provides that “a franchising authority may not grant an exclusive franchise and may not unreasonably refuse to award an additional competitive franchise.” Id. § 541(a)(1). Amerieable neither alleged nor demonstrated that the Navy did either. Accordingly, there was no violation of the plain language of either cited provision.

    Finally, Amerieable asserts that the conversion to SMATV infringes its First Amendment right “to provide cable service within its franchise area” because it “fore-closets] Americable’s opportunity to speak to a portion of the audience within its franchise area.” Appellant’s Br. at 36. In City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986), the United States Supreme Court recognized that the provision of cable television service “plainly implicate[s] First Amendment interests” because “through original programming or by exercising editorial discretion over which stations or programs to include in its repertoire” a cable operator “seeks to communicate messages on a wide variety of topics and in a wide variety of formats.” 476 U.S. at 494, 106 S.Ct. at 2037. Amerieable seizes on this language and on our opinion in Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330 (D.C.Cir.1985), (TCI) to argue that the SMATV installation works a violation of its First Amendment rights. Neither case helps Americable’s challenge. In TCI we acknowledged the First Amendment interests implicated in the provision of cable television services and thus held that the plaintiff cable operator, which had been providing cable service for some years at a Florida Air Force base, had stated a First Amendment claim sufficient to withstand a motion to dismiss by alleging that the Air Force had awarded a new exclusive franchise to another operator and denied the plaintiff access to “facilities essential to operating on the base.” 757 F.2d at 1335. Here, by contrast, Amerieable has produced no evidence to show that the SMATV installation will impair its ability to deliver programming anywhere in the franchise area. In fact, the Navy’s evidence affirmatively established the contrary. See Affidavit of Joseph F. Calcara (Naval Housing Acquisitions Division Director in San Diego, California) at 1 (stating “Americable’s cable and rights of way are unaffected by the SMATV system installation” and “Ameriea-ble remains free to offer a programming/cost structure and solicit individual and government subscribers at North Island without restriction”).

    Because the installation and operation of SMATV -will not prevent Amerieable from providing its cable service throughout the franchise area, we conclude that Amerieable has failed to establish a First Amendment injury arising from the Navy’s proposed actions. See Warner Cable Communications, Inc. v. City of Niceville, 911 F.2d 634, 636-41 (11th Cir.1990). Amerieable . asserted only that the SMATV service would “displace Amerieable entirely as the provider of cable TV services” because it will no longer receive bulk subscription payments from the[*1276] Navy for providing basic cable service. Her-manowski Declaration at 4, 6. Americable remains free, however, to market its cable service in whatever packages it chooses to individual residents. Whether the residents choose to purchase Americable’s service is beyond the scope of our inquiry. The First Amendment does not require that the Navy itself pay for Americable’s service or ensure that it is free from economic competition. See Warner Cable Communications, Inc., 911 F.2d at 637-38; cf. Regan v. Taxation With Representation of Washington, 461 U.S. 540, 544-45, 103 S.Ct. 1997, 2000-01, 76 L.Ed.2d 129 (1983) (government not required to subsidize constitutionally protected lobbying through tax exemption or deductions).

    For the preceding reasons, we affirm the district court’s dismissals of the Cable Act and First Amendment claims and reverse the court’s dismissals of the procurement law claims.

    So ordered.

    1

    . "[A]n SMATV system typically receives a signal from a satellite through a small satellite dish[*1273] located on a rooftop and then retransmits the signal by wire to units within a building or complex of buildings.” FCC v. Beach Communications, Inc., 508 U.S. 307, 311, 113 S.Ct. 2096, 2100, 124 L.Ed.2d 211 (1993) (citing In re Definition of a Cable Television System, 5 F.C.C. Rcd. 7638, 7639 (1990)).

    2

    . In fact, it appears that no SMATV systems will be installed at these locations and that the actions involving them are therefore moot. See Appellant's Br. at 10 n.2 (acknowledging Long Beach Naval Base has closed and Americable has acquired cable system at Submarine Base); Appellee’s Br. at 5 (asserting Navy has abandoned plans for SMATV system at North Island).

    3

    . Rule 108(h) provides in part;

    Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.

    D.D.C. R. 108(h).

    4

    . See Americable Int’l, Inc. v. United States Dep’t of the Navy, No. 95cv00282, mem. order at 1-2 (D.D.C. filed Apr. 17, 1996); Americable Int’l, Inc. v. United States Dep't of the Navy, No. 95cv002114, mem. order at 1-2 (D.D.C. filed Apr. 17, 1996); Americable Int’l, Inc. v. United States Dep't of the Navy, No. 95cv002214, mem. order at 1-2 (D.D.C. filed Apr. 17, 1996).

    5

    .We therefore reject Americable’s assertion that we should review the district court's decisions as dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Given that the motions were in the alternative for summary judgment and that the parties had the opportunity to submit and submitted materials in support and in opposition, it is not unfair to Americable to treat the decisions as summary judgments. See Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C.Cir.1985) ("[T]he reviewing court must assure itself that summary judgment treatment would be fair to both parties in that the procedural requirements of the applicable rules were observed.”). In any event, we would also affirm dismissal of the Cable Act and First Amendment claims under Rule 12(b)(6) because, as our discussion below illustrates, the allegations of the complaint, construed in the light most favorable to Americable, reveal that Americable can prove no set of facts that would entitle it to relief on the two claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), overruled on other ground by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).