IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-50505

ICG ACCESS SERVICES INCORPORATED,

Plaintiff-Appellant,

versus

SBC COMMUNICATIONS, INCORPORATED, formerly known as Southwestern Bell Corporation; SOUTHWESTERN BELL TELEPHONE COMPANY,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas (SA-95-CV-123)

March 13, 1997

Before GARWOOD, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

In this appeal we are asked to review the order of the

district court dismissing, pursuant to Federal Rules of Civil

Procedure 12(b)(6), the action of Plaintiff-Appellant ICG Access

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Services, Inc. (ICG) against Defendants-Appellees SBC

Communications Incorporated and Southwestern Bell Telephone Company

(collectively SBC), grounded in, inter alia, tortious interference

with ICG’s contractual relationship with City Public Service (CPS),

a gas and electric utility owned by the City of San Antonio, Texas.

The gravamen of ICG’s complaint is SBC’s allegedly tortious contact

with CPS and officials of the City of San Antonio informing them of

SBC’s opinion that a licensing agreement between CPS and ICG

contravened Texas law. The primary determination by the district

court of which ICG complains is that ICG failed to state a claim

sufficient to overcome SBC’s immunity under the Noerr-Pennington

Doctrine.

In our plenary review of the district court’s Rule 12(b)(6)

dismissal of ICG’s action, we have heard oral argument and

considered the briefs of counsel and the opinion of the district

court, and we have studied ICG’s First Amended Complaint and the

record such as it is at the Rule 12(b)(6) stage of the proceedings.

As a result, we are convinced that, beyond doubt, ICG could prove

no set of facts sufficient to overcome the protection afforded SBC

by the Noerr-Pennington Doctrine, which insulates SBC’s activities

under the petitioning clause of the First Amendment of the United

States Constitution. The instant case is clearly distinguishable

from our venerable opinion in Woods Exploration & Producing Co. v.

2 Aluminum Co. of America,1 and the allegations of ICG’s First

Amended Complaint present no specific and direct assertions that,

if proved, could elevate SBC’s acts to the level of threats or

coercive measures, or could demonstrate a sham on the part of SBC.

And, without addressing each case relied on by ICG, it suffices

that we find them inapposite, distinguishable, or both.

For essentially the same reasons relied on by the district

court, we conclude that dismissal of ICG’s action under Rule

12(b)(6) was proper and that the district court’s order to that

effect should be and therefore is

AFFIRMED.

1

(5th Cir. 1971), cert. denied,

,

,

(1972).

3