Eco-Site LLC v. County of Pueblo

          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 ...