United States District Court, D. Colorado
ECO-SITE LLC, a Delaware limited liability company, and T-MOBILE WEST LLC, a Delaware limited liability company, Plaintiffs,
v.
COUNTY OF PUEBLO, COLORADO, a Colorado County, acting by and through its Board of County Commissioners, Defendant, and SAM C. BROWN, Intervenor Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION FOR ORAL ARGUMENT ON SUMMARY JUDGMENT
AND SETTING HEARING
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
This
matter is before the Court upon Plaintiffs Eco-Site, LLC
(“Eco-Site”) and T-Mobile West, LLC
(“T-Mobile”) (collectively,
“Plaintiffs') Motion for Oral Argument on
Plaintiffs' Motions for Summary Judgment. (Doc. # 88.)
For the reasons described herein, the Court grants in part
and denies in part Plaintiffs' Motion for Oral Argument.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This
matter arises from two cases involving the same Plaintiffs
and Defendant Board of County Commissioners for the County of
Pueblo, Colorado, [1] and substantially similar claims under the
Federal Telecommunications Act of 1996, 47 U.S.C. §
332(c)(7), et seq. In both cases, Plaintiffs alleges
that Defendant unlawfully denied their requests to construct
telecommunications towers at two sites in Pueblo County. The
Court consolidated for all purposes the two cases on April 9,
2018, and described the factual and procedural background of
the matters in its Order Granting Defendant's Motion to
Consolidate Cases. (Doc. # 24.) The Court incorporates herein
its recounting of the facts from its April 9, 2018, Order.
See (id.) It details factual and procedural
developments only to the extent necessary to address
Plaintiffs' Motion for Oral Argument.
On
September 27, 2018, the Federal Communications Commission
(“FCC”) issued its Declaratory Ruling and Third
Report and Order in In the Matter of Accelerating
Wireless Broadband Deployment by Removing Barriers to
Infrastructure Investment, 33 FCC Rcd. 9088 (Sept. 27,
2018) (the “Declaratory Ruling”). See
(Doc. # 66-3 at 146.) On January 10, 2019, the Court of
Appeals for the Tenth Circuit denied a request by several
cities to stay the Declaratory Ruling, City of San Jose,
Cal. v. FCC, No. 18-9568 (10th Cir. Jan. 10, 2019), and
the Declaratory Ruling is therefore presently in effect.
On
March 1, 2019, Defendant, Plaintiff Eco-Site, and Plaintiff
T-Mobile separately filed Motions for Summary Judgment. (Doc.
## 64-66.) In its Motion for Summary Judgment, Plaintiff
T-Mobile argues that the Declaratory Ruling requires summary
judgment in its favor (Doc. # 66 at 7-16) and requests in an
attached exhibit that the Court entertain oral argument on
the Motions for Summary Judgment in light of the Declaratory
Ruling (Doc. # 66-5). It states that the Declaratory Ruling
“represents a sea change in the law in favor of
wireless telephone carriers” and, relevant to this
case, “fundamentally impacts the relevant legal
standard for determining whether Defendant has effectively
prohibited [Plaintiff] T-Mobile from providing service in
violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).”
(Doc. # 66 at 7.) Defendant responds that the Declaratory
Ruling is inapplicable to Plaintiffs' claims. (Doc. # 79
at 24-36.) The three Motions for Summary Judgment are now
fully briefed. (Doc. ## 76, 77, 79, 85-87.)
On
April 10, 2019, Plaintiffs filed the Motion for Oral Argument
presently before the Court. (Doc. # 88.) Plaintiffs assert
that in light of the Declaratory Ruling and because this
matter now includes two consolidated cases, each with
“a different proposed telecommunication facility
site” and “specific factual issues, ” oral
argument will assist the Court in clarifying the issues
addressed in the parties' Motions for Summary Judgment.
(Id. at 2-3.) Defendant responded to Plaintiffs'
Motion for Oral Argument on April 26, 2019. (Doc. # 89.) It
concedes that oral argument on the effect, if any, of the
Declaratory Ruling “might assist” the Court and
implies that it wishes to respond to Plaintiff T-Mobile's
Reply in support of its Motion for Summary Judgment (Doc. #
86). (Doc. # 89 at 2-3.) However, Defendant asserts that oral
argument on the factual record is not necessary because the
parties' briefs “adequately focus the Court on the
disputed issues in this case.” (Id. at 3.)
Plaintiffs filed a Reply in support of oral argument on April
29, 2019. (Doc. # 90.)
II.
DISCUSSION
The
Court agrees with the parties that oral argument on the
effect of the Declaratory Ruling on this case would be
beneficial as its considers the parties' Motions for
Summary Judgment. Accordingly, the Court grants
Plaintiffs' Motion for Oral Argument (Doc. # 88) to the
extent Plaintiffs seek to address the Declaratory Ruling.
However,
the Court will not hear argument on the factual record. As
Defendant asserts, the parties' lengthy briefs have
adequately cited the record and focused the Court on the
issues of disputed fact. See (Doc. # 89 at 3.) The
Court therefore denies Plaintiff's Motion for Oral
Argument (Doc. # 88) with respect to further development of
the factual record of this case.
III.
CONCLUSION
For the
foregoing reasons, the Court GRANTS IN PART and DENIES IN
PART Plaintiffs' Motion for Oral Argument. (Doc. # 88.)
It will hear oral argument on the effect of the Declaratory
Ruling but not on the factual record of this dispute. It is
FURTHER
ORDERED that within five (5) business days of the date of
this Order, the parties shall confer and have one attorney
email the Court (Arguello_chambers@cod.uscourts.gov) with
proposed dates and times at which all parties are available
...