Telesaurus VPC, LLC v. Power et al

Filing 224

ORDER granting 193 Motion for Summary Judgment. IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Defendants against Plaintiff, and that Plaintiff take nothing. The Clerk shall terminate this case. Signed by Judge Neil V Wake on 5/17/12.(LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Telesaurus VPC, LLC, a Delaware limited liability company, 10 Plaintiff, 11 ORDER vs. 12 No. CV07-1311-PHX-NVW Randy Power, an individual; Patricia Power, an individual; Radiolink Corporation, an Arizona corporation; and commonly-controlled and affiliated entities, 13 14 Defendants. 15 Before the Court is Defendants’ Motion for Summary Judgment (Doc. 193). For 16 17 the reasons stated below, the motion will be granted. 18 I. BACKGROUND 19 A. Genesis of this Dispute 20 In 1998, Telesaurus (a Delaware limited liability company) and RadioLink (an 21 Arizona corporation) both participated in an FCC auction for certain radio frequencies in 22 the Phoenix area designated as VHF Public Coast, or “VPC,” frequencies. Telesaurus 23 won the auction, but RadioLink soon gained access to the frequencies anyway by 24 allegedly “submit[ting] to the FCC a false application . . . falsely characterizing [five of 25 Telesaurus’s VPC frequencies] as frequencies in a certain pool of frequencies (very close 26 in frequency range to the VPC Frequencies) that the FCC set aside for licensing at no 27 charge, on a first-come, first-serve basis.” (Doc. 120 ¶ 15.) RadioLink denies that it 28 submitted a false application, and instead claims that a frequency coordinator (a non- 1 governmental entity that works as a sort of middleman for frequency applications) 2 mistakenly requested Telesaurus’s frequencies on RadioLink’s behalf. In any event, the 3 FCC did not realize that the requested frequencies were already assigned to Telesaurus, 4 and it granted RadioLink’s application. RadioLink began using Telesaurus’s frequencies 5 allegedly “for a common carrier Wireless Telecommunication Service and Commercial 6 Mobile Radio Service.” (Id. ¶ 16.) RadioLink disputes that it operated a commercial 7 mobile radio service, instead arguing that it operated a private mobile radio service for 8 customers such as fire departments and bus systems. 9 commercial service and a private service matters because the FCC treats commercial 10 services, but not private services, as “common carriers,” 47 U.S.C. § 332(c)(1)–(2), and 11 (as discussed below) RadioLink’s liability turns on whether or not it was a common 12 carrier. The distinction between a 13 Telesaurus apparently paid no attention to its VPC frequencies for several years, 14 and had no idea that RadioLink was using them until 2003 or 2004. Administrative 15 proceedings with the FCC ensued. In 2005, the FCC modified RadioLink’s license to 16 exclude Telesaurus’s five frequencies and include five replacement frequencies. 17 B. Initial Stages and Appeal 18 Telesaurus initiated this lawsuit in 2007, alleging that RadioLink had used 19 Telesaurus’s frequencies without permission from 1999 through 2005, thus supposedly 20 violating the common carrier provisions of the Federal Communications Act (FCA), see 21 47 U.S.C. § 207, and entitling Telesaurus to unspecified damages.1 Telesaurus also 22 asserted state-law torts. RadioLink eventually moved to dismiss, arguing that it was not a 23 common carrier as a matter of law, and therefore 47 U.S.C. § 207 could not apply. 24 RadioLink also argued that Telesaurus’s state-law claims were preempted by federal law. 25 26 27 1 According to counsel, Telesaurus suffered no losses from RadioLink’s actions, but rather seeks damages measured by RadioLink’s profits from using the VPC frequencies, similar to equitable disgorgement. (See Doc. 115 at 23–25.) 28 -2  1 This Court granted RadioLink’s motion, holding that RadioLink was not a 2 common carrier as a matter of law, and that the FCA preempts the state-law claims. On 3 appeal, the Ninth Circuit upheld the preemption conclusion, but not the common carrier 4 conclusion. 5 complaint did not sufficiently allege common carrier status. The Ninth Circuit therefore 6 remanded to give Telesaurus an opportunity to amend its complaint. C. 7 8 Development of a Focused Discovery and Summary Judgment Procedure The Ninth Circuit’s order established the following elements for common carrier 9 10 Nonetheless, the Ninth Circuit agreed that Telesaurus’s then-operative status: 14 [A] mobile service provider such as RadioLink qualifies as a “common carrier” under the FCA only to the extent it is “engaged in the provision of a service” that is: (1) for profit; (2) interconnected (or pending interconnection) with the public switched network; and (3) available to the public or other specified users. 15 Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1004 (9th Cir. 2010). Telesaurus’s second 16 amended complaint, filed in January 2011, tracked this language fairly closely, but was 17 devoid of supporting facts. RadioLink again moved to dismiss. 11 12 13 18 At a hearing on that motion in April 2011, the court stated that “those facts going 19 to ‘available to the public or other specified users,’ or ‘interconnected to the public 20 switched network,’ appear to be readily amenable to quick economical and definitive 21 discovery and resolution.” (Doc. 143 at 5.) The Court surmised that the parties “might 22 need some depositions. But most of this would appear . . . to be paper discovery.” (Id. at 23 17.) Referring to RadioLink’s transmitter site, counsel for Telesaurus added: “I could 24 envision a site inspection by an expert. I believe there’s going to be some disagreement 25 as to what the equipment can or can’t do . . . during this five- or six-year period [in which 26 RadioLink allegedly violated Telesaurus’s rights].” (Id. at 18.) 27 Based on the discussion at the hearing, the Court denied RadioLink’s motion to 28 dismiss and instead ordered the parties to develop a discovery plan focused only on the -3  1 second and third elements of the Ninth Circuit’s common carrier test, to be followed by 2 cross-motions for summary judgment on those elements. (Doc. 138.) After delays 3 occasioned by the parties’ other motions, the parties agreed on a scheduling order 4 requiring RadioLink to file a motion for summary judgment regarding interconnectedness 5 and availability to the public. That motion was to include 6 a written description in the form of a functional diagram of RadioLink’s operating system during the period from 1999 through the time in 2005 when its frequencies were changed, with sufficient detail to allow a third party, including [Telesaurus]’s expert witness, if any, to determine whether the system was interconnected with the public switched network . . . . 7 8 9 10 11 (Doc. 189 at 2.) The scheduling order went on to specify: 12 During January, 2012, (A) Defendants will permit inspections by duly qualified experts, at mutually convenient dates as follows: (i) Site inspection of RadioLink’s [repeater] facility, and (ii) Inspection of RadioLink’s repeater equipment in operation during the relevant time period, whether or not still operating; and (B) Plaintiff shall conduct the deposition of Randy Power at a date and time convenient to all parties, limited to the issues raised in Defendants’ Motion for Summary Judgment. Plaintiff reserves the right to request additional discovery concerning the issues raised by Defendant’s Motion for Summary Judgment pursuant to Rule 56(d) Fed.R.Civ.P. following its review of the Motion, and Defendants reserve the right to object to any such requests. 13 14 15 16 17 18 19 20 21 (Id.) 22 Telesaurus was required to obtain new counsel in the midst of summary judgment 23 briefing, causing delays. In the end, Telesaurus deposed Randy Power, but “decided to 24 forgo [an] inspection [of RadioLink’s repeater site] since none of the equipment 25 RadioLink used during the relevant time period remains at the site.” (Doc. 223 at 2.) 26 Telesaurus cites nothing in support of the assertion that none of the relevant equipment 27 remains in place. 28 -4  1 II. LEGAL STANDARD 2 Summary judgment is warranted if the evidence shows there is no genuine issue as 3 to any material fact and the moving party is entitled to judgment as a matter of law. Fed. 4 R. Civ. P. 56(a). The moving party bears the initial burden of identifying those portions 5 of the pleadings, depositions, answers to interrogatories, and admissions on file, together 6 with the affidavits, if any, which it believes demonstrate the absence of any genuine issue 7 of material fact. 8 nonmoving party would bear the burden of persuasion at trial, the moving party may 9 carry its initial burden of production by submitting admissible “evidence negating an 10 essential element of the nonmoving party’s case,” or by showing, “after suitable 11 discovery,” that the “nonmoving party does not have enough evidence of an essential 12 element of its claim or defense to carry its ultimate burden of persuasion at trial.” Nissan 13 Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1105–06 (9th Cir. 2000). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the 14 When the moving party has carried its burden, the nonmoving party must respond 15 with specific facts, supported by admissible evidence, showing a genuine issue for trial. 16 See Fed. R. Civ. P. 56(c). But allegedly disputed facts must be material — the existence 17 of only “some alleged factual dispute between the parties will not defeat an otherwise 18 properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 19 U.S. 242, 247–48 (1986) (emphasis in original). 20 Where the record, taken as a whole, could not lead a rational trier of fact to find 21 for the nonmoving party, there is no genuine issue of material fact for trial. Matsushita 22 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 23 nonmoving party’s properly presented evidence is presumed to be true and all inferences 24 from the evidence are drawn in the light most favorable to that party. Eisenberg v. Ins. 25 Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987). 26 III. However, the ADMISSIBILITY OF EVIDENCE 27 A party may object that the evidence cited by the other party in support or 28 opposition to summary judgment “cannot be presented in a form that would be -5  1 admissible in evidence.” Fed. R. Civ. P. 56(c)(2). “While the evidence presented at the 2 summary judgment stage does not yet need to be in a form that would be admissible at 3 trial, the proponent must set out facts that it will be able to prove through admissible 4 evidence.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). 5 A. 6 Telesaurus claims that certain documents submitted by RadioLink related to its 7 FCC applications (Doc. 194 at 11–26) are hearsay. This motion can be resolved without 8 reference to those documents. The Court will therefore not rule on Telesaurus’s hearsay 9 objections. 10 B. Evidence Submitted by Telesaurus 1. 11 12 Evidence Submitted by RadioLink BLM Documents RadioLink challenges the authenticity of documents Telesaurus obtained from the 13 Bureau of Land Management (Docs. 210-2 through 210-8). 14 nothing from the BLM’s custodian of records to authenticate the BLM documents. 15 However, it is not impossible for these documents to be authenticated, especially if this 16 case went forward to full discovery. In addition, at his deposition, Power authenticated 17 certain of these BLM documents relating to himself and RadioLink. Therefore, the BLM 18 documents relating directly to Power or RadioLink will not be excluded for lack of 19 authenticity. The remaining BLM documents are irrelevant, and even if relevant, would 20 be hearsay. They will be excluded. 2. 21 Telesaurus submitted Havens Affidavit 22 RadioLink challenges an affidavit submitted by Telesaurus’s principal, Warren 23 Havens. “An affidavit or declaration used to support or oppose a [summary judgment] 24 motion must be made on personal knowledge, set out facts that would be admissible in 25 evidence, and show that the affiant or declarant is competent to testify on the matter 26 stated.” 27 summarizes attached documentary evidence (such as the BLM documents), none of Fed. R. Civ. P. 56(c)(4). Havens’ affidavit fails this standard. 28 -6  It only 1 which substantiates his personal knowledge. Rather, he gained his knowledge from the 2 documentary evidence. Accordingly, the Havens affidavit is inadmissible. 3 IV. 4 5 FACTS Taking into account the foregoing, the following facts are undisputed unless attributed to one party or another. 6 A. The VPC Frequencies and RadioLink’s Equipment 7 As noted above, both RadioLink and Telesaurus competed in an auction in 1998 8 for certain VPC frequencies, which Telesaurus won. The following year, RadioLink 9 gained overlapping rights to five of those frequencies, on which it transmitted under call 10 sign WPOX212. RadioLink claims that the overlap was a mistake on the part of 11 Industrial Telecommunications Association, a frequency coordinator authorized by the 12 FCC to recommend appropriate frequencies in the private land mobile radio spectrum. In 13 2005, this conflict between Telesaurus’s and RadioLink’s rights came to light and the 14 FCC deleted the five disputed frequencies from RadioLink’s WPOX212 license, 15 replacing them with other available frequencies. 16 According to a declaration from Randy Power, RadioLink’s WPOX212 repeater 17 equipment has never included the technology or other means necessary to interconnect 18 with the public switched network — or in other words, to allow radio operators to place 19 or receive phone calls from their radios. In addition, Power claims that RadioLink’s 20 service has never been offered to the general public. Rather, says Power, RadioLink 21 selected its customers based on the repeater equipment’s capacity, the potential 22 customer’s ability to obtain needed FCC permits, and the potential customer’s ability to 23 pay. RadioLink therefore claims that it has always operated as a private mobile radio 24 service, rather than a commercial service. 25 B. BLM Rent Calculations 26 RadioLink’s repeater equipment sits on land owned by the Bureau of Land 27 Management on White Tank Mountain, west of Phoenix. Randy Power has leased that 28 land from the BLM since sometime in the 1980s. Not only has he placed RadioLink’s -7  1 equipment on that land, but he has also sublet his facilities to certain other 2 communications providers. 3 Occasionally (usually once a year), Power is required to fill out a BLM form 4 listing the “occupants” of the land he leases, the “type of use” for each occupant, and 5 whether each occupant is a “customer” or “tenant.” This form assists the BLM in 6 calculating Power’s rent. On every one of these forms filled out by Power from 1996 7 through 2011, Power identified the site’s general “type of use” as a “commercial mobile 8 radio service/facility manager” or just “commercial mobile radio service.” Each tenant’s 9 specific type of use was listed as “CMRS” (commercial mobile radio service) or “BT” 10 (broadcast translator), but every customer’s type of use was listed as “PMRS” (private 11 mobile radio service). (See Doc. 210-2 at 12, 21, 27, 33, 50, 59, 69, 89, 97, 103, 113; 12 Doc. 210-3 at 7, 11, 16, 29, 44.) 13 C. 14 At some point, probably in the late 1990s and no later than 2001 (see Doc. 223-1 15 at 24), Power and his then-wife, Patricia, each filled out an FCC Form 499-A (Doc. 210-9 16 at 21–24). The FCC requires certain telecommunications providers to report revenue 17 annually on Form 499-A so that the FCC can collect contributions used to fund various 18 programs relating to telephone service. (See Doc. 223-1 at 89.) The Powers were in the 19 midst of divorce proceedings at that time and to the best of Randy Power’s recollection, 20 they filled out these forms independently of each other because they both had certain 21 FCC licenses in their own names. 22 FCC Form 499-A Both Randy and Patricia stated on their Forms 499-A that they were “doing 23 business as” “RadioLink Corp.” Randy identified RadioLink’s business as “other 24 mobile,” which is not listed as an available category on the form’s instructions. Patricia 25 identified RadioLink’s business as “SMR [specialized mobile radio] (dispatch),” defined 26 in the instructions as “primarily provid[ing] dispatch services and mobile services other 27 than wireless telephony. While dispatch services may include interconnection with the 28 -8  1 public switched network, this category does not include carriers that primarily offer 2 wireless telephony.” (Id. at 99–100.) 3 When asked at his deposition to explain the discrepancy between his and his 4 Patricia’s forms, Power stated: “[T]hat was a confusing time in my life [while going 5 through the divorce] and maybe she thought of one way and I thought of another. I don’t 6 know. I can’t answer that for sure.” (Id. at 25.) Also at Power’s deposition, Telesaurus 7 pointed out that the Powers could have identified RadioLink as being a “Private Service 8 Provider,” defined on the form’s instructions as “offer[ing] telecommunications to others 9 for a fee on a non-common carrier basis. This would include a company that offers 10 excess capacity on a private system that it uses primarily for internal purposes.” (Id. at 11 99.) Power responded that RadioLink has never provided “telecommunications,” but 12 only “dispatch.” (Id. at 27.) Power speculated that he and his wife nonetheless filled out 13 these forms either as part of a transaction in which a cellphone company acquired certain 14 frequencies from the Powers, or because they operated another service in Phoenix in the 15 late 1990s with telephone interconnect. (Id.) 16 V. ANALYSIS 17 A. 18 The Ninth Circuit has made clear that liability in this case turns on RadioLink 19 being a “common carrier,” and that common carrier status turns on the service that the 20 alleged common carrier actually provides: 21 22 23 24 Alleged Legal Presumption of CMRS [A] mobile service provider such as RadioLink qualifies as a “common carrier” under the FCA only to the extent it is “engaged in the provision of a service” that is: (1) for profit; (2) interconnected (or pending interconnection) with the public switched network; and (3) available to the public or other specified users. 25 Telesaurus, 623 F.3d at 1004. Despite this, Telesaurus’s primary argument here is that 26 RadioLink must be presumed to be a common carrier because it used the VPC 27 28 -9  1 frequencies. Telesaurus raised essentially this same argument on appeal, and the Ninth 2 Circuit disagreed: 3 Telesaurus argues that Radiolink must be deemed to be a common carrier because it was using the VPC Frequencies, which the FCC designated for use only by commercial mobile services. We reject this tautology. As explained above, the definition of “commercial mobile services” does not turn on the nature of the frequencies being used, but rather on whether the service being provided meets certain criteria. 4 5 6 7 8 Id. at 1005. 9 The only distinction Telesaurus makes now is to pile the elements of common 10 carrier status into the argument. Telesaurus, for example, states that use of the VPC 11 frequencies constitutes a commercial service and that commercial service operators must 12 interconnect with the public switched network, therefore RadioLink must have 13 interconnected. Telesaurus also points out the various FCC regulations that RadioLink 14 supposedly violated by using the VPC frequencies for something other than a commercial 15 service, insisting that RadioLink must therefore have been a commercial service. These 16 arguments are no less tautological than the argument the Ninth Circuit rejected. They do 17 not suffice to defeat summary judgment. 18 B. 19 RadioLink has proffered evidence that WPOX212 (which included the VPC 20 frequencies from 1999 to 2005) has never been interconnected with the public switched 21 network. (See Doc. 194-1 at 4–7.) The burden therefore shifted to Telesaurus to bring 22 forth evidence showing that a reasonable trier of fact could conclude otherwise. As 23 explained below, Telesaurus has not met that burden. 24 Interconnection with the Public Switched Network 1. The Forms 499-A 25 Telesaurus leans heavily on the 499-A forms that Randy and Patricia Power had 26 once filled out. Telesaurus located these forms in an online FCC database. They are the 27 only two forms that Telesaurus has offered from that database. They do not create a 28 dispute over a material issue. - 10   1 First, their exact date is unclear. Telesaurus continually suggests that the forms 2 were filled out in 2001, but it provides no citation for that. The forms themselves bear no 3 date on which they were submitted to the FCC. Based on the business address listed on 4 those forms and the nature of the forms themselves, Power speculated at his deposition 5 that he and Patricia filled them out sometime in the late 1990s — meaning that they may 6 have filled them out before RadioLink began using the VPC frequencies. If so, these 7 forms would clearly have no relevance. 8 But even assuming that the Powers filled out these forms sometime after 9 RadioLink began using the VPC frequencies, the relevance is still unclear. Telesaurus 10 argues that because neither Randy nor Patricia Power selected “Private Service Provider” 11 from a list of available types of telecommunications services in the 499-A instructions, an 12 inference arises that RadioLink was not a private mobile radio service. But Telesaurus 13 has not established, nor do its documents establish, that Form 499-A has anything to do 14 the distinctions between commercial mobile radio services and private mobile radio 15 services. The form’s instructions list fifteen different types of services that the Powers 16 could have selected. “Commercial mobile radio service” and “private mobile radio 17 service” are not on that list. (Doc. 223-1 at 98–99.) The only option linguistically close 18 to either of them is “Private Service Provider,” defined as “offer[ing] telecommunications 19 to others for a fee on a non-common carrier basis. This would include a company that 20 offers excess capacity on a private system that it uses primarily for internal purposes.” 21 (Doc. 223-1 at 99.) If the FCC meant this definition to be coterminous with its definition 22 of private mobile radio service, one could reasonably have expected it to say so. But it 23 did not. 24 In addition, the types of service that Randy and Patricia Power listed for 25 RadioLink do not suggest that RadioLink operated as a commercial service. Randy 26 Power chose “other mobile,” an option which does not exist in the 499-A instructions. 27 “Other mobile” says nothing about the relevant characteristics of RadioLink’s service. 28 Patricia Power chose “SMR (dispatch),” which applies to those who “primarily provide[] - 11   1 dispatch services and mobile services other than wireless telephony. While dispatch 2 services may include interconnection with the public switched network, this category 3 does not include carriers that primarily offer wireless telephony.” (Doc. 223-1 at 99– 4 100.) 5 interconnection, “SMR (dispatch)” might still have been the appropriate designation on 6 the 499-A. It says nothing about whether RadioLink ever provided interconnection. 7 Accordingly, the 499-A forms do not raise a dispute over whether RadioLink was ever 8 interconnected with the public switched network. This definition shows only that if RadioLink had provided telephone 2. 9 BLM Documents 10 Telesaurus also attempts to make much of the BLM paperwork documenting 11 Power’s yearly rent payments for the White Tank Mountain repeater site. Because, on 12 the BLM documents, Power has consistently identified his use of the repeater site as 13 “commercial mobile radio service/facility manager” or “commercial mobile radio 14 service,” Telesaurus argues that a material issue of fact exists about what sort of service 15 RadioLink really offered. Telesaurus further asserts that listing oneself as a commercial 16 service on these BLM forms raises a presumption that one is in fact a commercial service 17 for FCC purposes, and therefore RadioLink must have been interconnected to the public 18 switched network, with services offered to the public indiscriminately. Telesaurus is 19 mistaken. 20 21 22 23 24 25 26 27 The BLM’s regulations make clear that its definitions of “commercial mobile radio service” and “private mobile radio service” differ from the FCC’s definitions: Commercial mobile radio service (CMRS)/facility manager means commercial mobile radio uses that provide mobile communication service to individual customers. Examples of CMRS include: Community repeaters, trunked radio (specialized mobile radio), two-way radio voice dispatch, public switched network (telephone/data) interconnect service, microwave communications link equipment, and other two-way voice and paging services. “Facility Managers” are grant or lease holders that lease building, 28 - 12   1 3 tower, and related facility space to a variety of tenants and customers as part of the holder’s business enterprise, but do not own or operate communication equipment in the facility for their own uses; 4 *** 2 5 6 7 8 9 10 11 Private mobile radio service (PMRS) means uses supporting private mobile radio systems primarily for a single entity for mobile internal communications. PMRS service is not sold and is exclusively limited to the user in support of business, community activities, or other organizational communication needs. Examples of PMRS include: Private local radio dispatch, private paging services, and ancillary microwave communications equipment for controlling mobile facilities; 43 C.F.R. § 2801.5(b). 12 The most notable difference between these definitions and the FCC’s definitions is 13 that, for BLM purposes, a private mobile radio service “is not sold and is exclusively 14 limited to the user.” The FCC, by contrast, permits some private mobile radio services to 15 operate on a for-profit basis with subscribers. See 47 C.F.R. § 20.3 (defining “Private 16 Mobile Radio Service” to include, among other things, “[m]obile radio service offered to 17 restricted classes of eligible users”). In addition, the BLM views “switched network 18 (telephone/data) interconnect service” as an example of commercial mobile radio 19 services, not as an element of such service. Thus, the BLM’s definitions demonstrate that 20 any FCC-designated “private mobile radio service” operating on a for-profit basis would 21 fall under the “commercial mobile radio service” heading for BLM rent purposes. It is 22 undisputed that RadioLink operated on a for-profit basis from 1999 to 2005. 23 Accordingly, Power correctly identified the White Tank Mountain site as being used for a 24 “commercial” service with respect to the BLM’s rent calculations. 25 In addition, the BLM “calculates rents for * * * [m]ultiple-use facilities, whose 26 authorizations provide for subleasing, by setting the rent of the highest value use in the 27 facility or facilities as the base rent . . . .” 43 C.F.R. § 2806.31(a)(2). As far as the BLM 28 documents disclose, the “highest value use” on the White Tank Mountain site was the - 13   1 commercial mobile radio service offered by certain of Power’s tenants. Accordingly, for 2 this additional reason, Power correctly identified the White Tank Mountain site as being 3 used for a “commercial” service with respect to the BLM’s rent calculations. 4 However, Telesaurus has failed to demonstrate how the BLM’s regulations have 5 any relevance to whether RadioLink was a commercial service under the FCC’s 6 definition. Indeed, Telesaurus failed to address any of the foregoing authority. Nor does 7 Telesaurus acknowledge that Power consistently listed all of RadioLink’s customers (as 8 opposed to other tenants on the site) as receiving private mobile radio services, just as 9 RadioLink has claimed. (See Doc. 210-2 at 12, 21, 27, 33, 50, 59, 69, 89, 97, 103, 113; 10 Doc. 210-3 at 7, 11, 16, 29, 44.) Thus, rather than casting doubt on RadioLink’s 11 assertions, the BLM documents offered by Telesaurus support RadioLink’s position. 12 They do not raise a genuine issue of material fact. 13 Because interconnection is a necessary element of Telesaurus’s claim, and because 14 it has failed to show that a genuine dispute exists as to that element, RadioLink is entitled 15 to summary judgment. 16 C. 17 RadioLink has proffered evidence that WPOX212 has never been offered to “‘the 18 public or . . . to such classes of eligible users as to be effectively available to a substantial 19 portion of the public.’” Telesaurus, 623 F.3d at 1004 (quoting 47 U.S.C. § 332(d)(1)) 20 (alteration added). Power’s declaration in support of summary judgment states: 21 22 23 24 25 26 27 28 Availability to the Public All of RadioLink’s customers were selected on an individual basis and selectively allowed to use the Repeater System based on a) a determination that they met the criteria of being qualified as permitted from [certain] FCC rules . . . and b) an agreed upon price per unit per month based upon various criteria, including the total number of radios being used, the type of customer, the number of ID codes to be used in the customer’s private fleet and other factors determined and applied in RadioLink’s discretion. The selection of customers was discriminatory and limited by the capacity of the Repeater System. Among other things, RadioLink limited the - 14   1 number of customers so that the Repeater System would not be overloaded, thus allowing normal access to the radio system without many if any “busy beeps.” 2 3 4 5 6 7 8 9 10 11 (Doc. 194-1 at 7.) At his deposition, Power testified that he develops business through “word-of-mouth” and “by responding to bids for two-way radio service that I might be able to provide for a school district or some entity that’s looking for service.” (Doc. 2231 at 23–24.) Telesaurus has offered no evidence refuting Power’s claims. Because offering the service to the public or a substantial class of the public is a necessary element of Telesaurus’s claim, and because it has failed to show that a genuine dispute exists as to that element, RadioLink is entitled to summary judgment on this basis as well. D. Discovery Issues 12 Telesaurus has claimed that it cannot fully make its case because RadioLink has 13 been hiding documents. This claim stems from requests for production that Telesaurus 14 served on RadioLink (Doc. 211-1 at 3–20), to which RadioLink objected on various 15 grounds, but also noted, with respect to certain requests, that no responsive documents 16 exist. Concerning certain other requests, counsel for RadioLink directed Telesaurus to 17 specific documents previously produced. As for Telesaurus’s remaining requests (having 18 to do with certain FCC proceedings), counsel stated that Telesaurus “can just as readily 19 obtain any such documents, to the extent they exist, from the public records as can 20 [RadioLink].” (Id. at 29–30.) 21 Telesaurus argues that RadioLink’s response was disingenuous because 22 Telesaurus found documents that RadioLink should have disclosed — referring to public 23 documents such as the BLM rent paperwork and the 499-A forms. Telesaurus has 24 provided no reason to think that these documents were in RadioLink’s possession, and in 25 any event Telesaurus has not been harmed because it obtained the documents anyway. 26 To the extent Telesaurus believes that RadioLink is still hiding something, Telesaurus has 27 never brought a motion to compel production. 28 - 15   1 Telesaurus had ample opportunity to conduct discovery in this case. The parties 2 and the Court began developing this narrowed discovery and summary judgment 3 procedure over a year ago. Although the scheduling order as between Telesaurus and 4 RadioLink did not go into effect until last November, nothing prevented Telesaurus from 5 conducting third-party discovery. For example, through its own efforts to obtain the 6 BLM documents, Telesaurus learned of many of RadioLink’s customers. It could have 7 followed up by serving subpoenas on those customers to discover information relevant to 8 the elements at issue here — such as whether those customers expected or received the 9 ability to place phone calls through their radios. Telesaurus’s failure to do so does not 10 11 12 13 14 15 excuse its supposed inability to rebut RadioLink’s evidence. IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc. 193) is GRANTED. IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Defendants against Plaintiff, and that Plaintiff take nothing. The Clerk shall terminate this case. Dated this 17th day of May, 2012. 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16  

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