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,
COUNTY OF PUEBLO, Colorado, a Colorado County, Acting by and Through its Board of County Commissioners, Defendant,
[Copyrighted Material Omitted]
Abigail L. Brown, Rebecca B. DeCook, Moye White LLP, Denver,
CO, Martin L. Fineman, Davis Wright Tremaine, LLP-San
Francisco, San Francisco, CA, for Plaintiffs.
James Goldfarb, Josh Adam Marks, Berg Hill Greenleaf &
Ruscitti, LLP, Boulder, CO, for Defendant.
ON CROSS MOTIONS FOR SUMMARY JUDGMENT
M. ARGUELLO, United States District Judge.
matter is before the Court upon Plaintiffs Eco-Site, LLC
("Eco-Site") and T-Mobile West, LLC
"Plaintiffs'") and Defendant County of Pueblo,
Colorado's ("Pueblo County") Cross Motions for
(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.
AND PROCEDURAL BACKGROUND
matter arises from two cases involving the same Plaintiffs
and Defendant Board of County Commissioners for the County of
Pueblo, Colorado, 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.
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.
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. (Id. at 5.)
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.)
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.)
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., ___ U.S. ___,
139 S.Ct. 2051, 204 L.Ed.2d 433 (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, 65 S.Ct. 152, 89
S.Ct. 101 (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
INTRODUCTION AND ...