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'") and Defendant County of Pueblo, Colorado's ("Pueblo County") Cross Motions for Summary Judgment.
This matter arises from two cases involving the same Plaintiffs and Defendant Board of County Commissioners for the County of Pueblo, Colorado,
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.
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
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 F. App'x 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.)
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., ___ 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 unavoidable.").
In its Declaratory Ruling, the FCC suggests that the Declaratory Ruling is merely a "clarifying interpretation of Section 253 and 332(c)(7)"
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.
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.
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 the statute. See id. at 1250. If it does not, it is merely interpretive. If it does, then the Court must determine whether the agency action should apply retroactively.
Petitioners in Farmers argued that the FCC disavowed controlling precedent by issuing an interpretation contrary to that of the National Exchange Carrier Association, a membership-based organization created by the FCC. 184 F.3d at 1250. Because NECA had no authority to perform adjudicatory or governmental functions, the Tenth Circuit concluded that NECA's interpretation was not binding. Id. at 1250-51. As such, the Tenth Circuit held that the FCC Order at issue in Farmers was merely interpretive because it did not overrule or disavow any controlling precedent and did not alter petitioners' existing rights or obligations under the regulations at hand.
Unlike the order in Farmers, however, the Declaratory Ruling in the instant
These two factors establish that the Declaratory Ruling is not merely interpretive. As such, the Court now turns to retroactivity.
As a general rule, legislative enactments and newly promulgated agency rules—due to their affinity to legislation— are given only prospective effect, whereas judicial decisions may also be given retroactive effect. Munoz v. Lynch, 631 F. App'x 510, 512 (10th Cir. 2015). "A statute, order, or edict `operates retroactively' when it seeks to impose `new legal consequences to events completed before its' announcement." De Niz Robles v. Lynch, 803 F.3d 1165, 1168 (10th Cir. 2015) (quoting INS v. St. Cyr, 533 U.S. 289, 321, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)).
The Tenth Circuit cautioned that administrative agency action should not be entitled to retroactivity merely because the agency chose adjudication over rulemaking:
De Niz Robles, 803 F.3d at 1172-74.
Farmers lays out the factors, derived from Stewart Capital Corp. v. Andrus, 701 F.2d 846, 848 (10th Cir. 1983), to balance in deciding whether to apply a new agency ruling retroactively. These factors, are:
Farmers, 184 F.3d at 1251.
In De Niz Robles, the Tenth Circuit addressed the question of whether an agency adjudication, such as the one here, should be given retroactive effect. 803 F.3d 1165. In that case, the agency purported to interpret the law when it issued an order through adjudication. Applying the Stewart Capital balancing test, the Tenth Circuit disagreed with the agency's characterization of its order and decided it should apply only prospectively.
The retroactivity balancing test leads the Court to the same conclusion in this case. As to the first factor, the case before us is not one of first impression. The Tenth Circuit established the standard to apply to cases of this kind in AT & T.
These factors, considered in conjunction with the presumption against retroactive application of agency rulemaking and the lack of congressional authorization to apply this Declaratory Ruling retroactively,
The Court has identified several issues of disputed fact in this case. The materiality of these disputes under AT & T is not established by the briefing presently before the Court. These disputed issues include:
For the foregoing reasons, it is ORDERED that Defendant Pueblo County's Motion for Summary Judgment (Doc. # 64) is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED as to the legal standard that should apply to Plaintiffs' Section 332 claims. The Court declines to apply the FCC's Declaratory Ruling retroactively and will instead apply the "least intrusive means" standard from AT & T Mobility Servs., LLC v. Vill. of Corrales, 642 F. App'x 886 (10th Cir. 2016). The remainder of the Motion is DENIED WITHOUT PREJUDICE. It is
FURTHER ORDERED that Plaintiff Eco-Site's Motion for Summary Judgment (Doc. # 65) and Plaintiff T-Mobile's Motion for Summary Judgment (Doc. # 66) are DENIED WITHOUT PREJUDICE. It is
FURTHER ORDERED that the Parties may refile motions for summary judgment in light of this Order. The Parties should refocus their arguments on the merits of Plaintiffs' Section 332 claims and the materiality of disputed issues of fact under AT & T. Further, the Parties should synthesize the relevant technical information so as to highlight which facts are material to the dispositive issues. Motions for summary judgment must be filed no later than January 7, 2020, and must not exceed 20 pages. It is
FURTHER ORDERED that Counsel shall confer regarding the possibility of appointing a special master to assist the Court with the technical issues presented