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,
v.
SAM C. BROWN, Intervenor Defendant.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
CHRISTINE M. ARGUELLO JUDGE
This
matter is before the Court upon Plaintiffs Eco-Site, LLC
(“Eco-Site”) and T-Mobile West, LLC
(“T-Mobile”) (collectively,
“Plaintiffs'”) and Defendant County of
Pueblo, Colorado's (“Pueblo County”) Cross
Motions for Summary Judgment. (Doc. ## 64-66.) For the
reasons described herein, the Court denies without prejudice
Plaintiffs' Motions for Summary Judgment and grants in
part and denies in part Defendant Pueblo County's Motion
for Summary Judgment.
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., (“TCA”). In both
cases, Plaintiffs allege that Defendant Pueblo County
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 the Cross Motions for Summary Judgment.
On
September 27, 2018, after Defendant Pueblo County denied the
permit applications at issue in this case, 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 Pueblo County, Plaintiff Eco-Site,
and Plaintiff T-Mobile separately filed Motions for Summary
Judgment. (Doc. ## 64-66.) Plaintiff Eco-Site argues that the
Declaratory Ruling requires summary judgment in its favor as
to both its effective prohibition of service claims and its
substantial evidence claims. Plaintiff T-Mobile joined
Plaintiff Eco-Site's Motion (Doc. # 65 at 8) and
separately argues that summary judgment should enter in its
favor as to its effective prohibition of service claims (Doc.
# 66 at 7-16). Neither Plaintiff moved for summary judgment
on the 332(c)(7)(B)(i)(I) discrimination or Colo. R. Civ. P.
106(a)(4) administrative review claims. Plaintiffs argue that
the standard for evaluating claims under Section 332 of the
TCA announced in the FCC's Declaratory Ruling should
apply to their claims in this case.[2] (Id. at 5.)
Defendant
responds that the Declaratory Ruling is inapplicable to
Plaintiffs' claims because the FCC ruling changes the
standard applied to claims under Section 332 of the TCA and
should not apply retroactively to the past conduct at issue
in this case. (Doc. # 79 at 24-36.) Defendant moved for
summary judgment as to all claims, but briefed only
Plaintiffs' effective prohibition of service, substantial
evidence, and discrimination claims. (Doc. # 64.)
In the
event the Court declines to apply the Declaratory Ruling to
this case, each party argues that it should succeed on
summary judgment as to Plaintiffs' Section 332 claims
under the “least intrusive means” standard
applied by the Tenth Circuit in AT&T Mobility Servs.,
LLC v. Vill. of Corrales, 642 Fed.Appx. 886, 889 (10th
Cir. 2016). The three Motions for Summary Judgment are fully
briefed. (Doc. ## 76, 77, 79, 85-87.) The Court entertained
oral argument on the issue of retroactivity on June 27, 2019.
(Doc. # 100.)
II.
DISCUSSION
As an
initial matter, the Court does not need to address if it has
jurisdiction to review the validity of the FCC's
Declaratory Ruling under PDR Network, LLC, et al. v.
Carlton & Harris Chiropractic, Inc., 2019 WL 2527470
( S.Ct. 2019), because the Court declines to apply the
Declaratory Ruling to the claims in this case on other
grounds. See Spector Motor Service, Inc. v.
McLaughlin, 323 U.S. 101, 103 (1944) (“If there is
one doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not pass
on questions of constitutionality . . . unless such
adjudication is unavoidable.”).
A.
INTRODUCTION AND SUMMARY CONCLUSION
In its
Declaratory Ruling, the FCC suggests that the Declaratory
Ruling is merely a “clarifying interpretation of
Section 253 and 332(c)(7)”[3] and “applies with
equal measure to the effective prohibition standard that
appears in both Section 253(a) and 332(c)(7).” The FCC
“reaffirm[ed], as [its] definitive interpretation of
the effective prohibition standard [in both Section 253(a)
and 332(c)(7)], the test [it] set forth in California
Payphone, namely that a state or local legal requirement
constitutes an effective prohibition if it ‘materially
limits or inhibits the ability of any competitor or potential
competitor to compete in a fair and balanced legal and
regulatory environment.'” Declaratory Ruling ¶
35, at 15 (footnote omitted).
Notably,
however, in In re Cal. Payphone Ass'n, 12
F.C.C.R. 14191, 14206, 1997 WL 400726 (1997), the FCC's
application of the “materially inhibits” standard
was limited to a Section 253(a) claim. Section 332 was not
addressed by the FCC in California Payphone.
On its
face, the Declaratory Ruling appears to affirm the Tenth
Circuit's treatment of these issues.[4] In actuality,
however, the FCC Declaratory Ruling denounced the application
of any standard more restrictive than the “materially
inhibits” standard to Section 253(a) and 332(c)(7)
claims. The Declaratory Ruling, thus, effectively affirmed
the Tenth Circuit's analysis of Section 253(a) claims (to
which the Tenth Circuit applies the “materially
inhibits” standard, following California
Payphone)[5] and disavowed the Tenth Circuit's
treatment of Section 332[6] claims[7] (to which the Tenth Circuit
applies the “least intrusive means” standard,
see AT&T, 642 Fed.Appx. at 889).
Plaintiffs
in this case have brought their claims under Section 332 of
the TCA, to which the Tenth Circuit applies a “least
intrusive means” standard. Thus, the threshold question
that must be addressed by the Court is whether the FCC's
Declaratory Ruling applies to the permit denials at issue in
this case.
The
Court first addresses whether the Declaratory Ruling raises
retroactivity concerns or is merely interpretive. Concluding
that the Declaratory Ruling is not merely interpretive and,
thus, does raise retroactivity concerns, the Court next
analyzes whether the Declaratory Ruling should apply
retroactively to the claims in this case. Declining to apply
the Declaratory Ruling retroactively, the Court turns to its
summary judgment analysis under the standard set forth in
AT&T. The Court identifies several issues of
disputed fact, the materiality of which is not established by
the briefing before the Court.
B.
MERELY INTERPRETIVE
1.
Applicable Law
If the
Declaratory Ruling is merely interpretive, the issue of
retroactivity does not arise and this Court may apply the
standard in the Declaratory Ruling to the conduct in this
case. A ruling is deemed interpretive “if the rule in
question merely clarifies or explains existing law or
regulations.” Farmers Telephone Co., Inc. v.
F.C.C., 184 F.3d 1241, 1250 (10th Cir. 1999). The Tenth
Circuit has indicated that agency action is merely
interpretive unless it overrules or disavows any controlling
precedent or alters petitioners' (or, in the instant
case, Defendant's) existing rights or obligations under
...