Eco-Site LLC et al v. County of Pueblo, Colorado

Filing 95

ORDER Granting in part and Denying in part 88 Plaintiffs' Motion for Oral Argument. (Doc. # 88 .) It will hear oral argument on the effect of the Declaratory Ruling but not on the factual record of this dispute. It is FURTHER ORDERED that within five (5) business days of the date of this Order, the parties shall confer and have one attorney email the Court ([e-mail]) with proposed dates and times at which all parties are available for oral argument. The Court will set aside two hours for oral argument, by Judge Christine M. Arguello on 5/29/2019.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-02535-CMA-STV

Consolidated for all purposes with Civil Action No. 17-cv-02862-CMA-STV

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, and
SAM C. BROWN,
Intervenor Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR
ORAL ARGUMENT ON SUMMARY JUDGMENT AND SETTING HEARING
______________________________________________________________________
This matter is before the Court upon Plaintiffs Eco-Site, LLC (“Eco-Site”) and TMobile West, LLC (“T-Mobile”) (collectively, “Plaintiffs’) Motion for Oral Argument on
Plaintiffs’ Motions for Summary Judgment. (Doc. # 88.) For the reasons described
herein, the Court grants in part and denies in part Plaintiffs’ Motion for Oral Argument.

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. In both cases, Plaintiffs alleges that Defendant 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 Plaintiffs’ Motion for Oral
Argument.
On September 27, 2018, 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.

The Court granted Sam C. Brown’s request to intervene in this matter as a Defendant
Intervenor on October 29, 2018. (Doc. # 55.) Defendant Intervenor Brown owns property
adjacent to one of the proposed sites for Plaintiffs’ wireless communication facilities. (Id. at 2.)
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On March 1, 2019, Defendant, Plaintiff Eco-Site, and Plaintiff T-Mobile separately
filed Motions for Summary Judgment. (Doc. ## 64–66.) In its Motion for Summary
Judgment, Plaintiff T-Mobile argues that the Declaratory Ruling requires summary
judgment in its favor (Doc. # 66 at 7–16) and requests in an attached exhibit that the
Court entertain oral argument on the Motions for Summary Judgment in light of the
Declaratory Ruling (Doc. # 66-5). It states that the Declaratory Ruling “represents a sea
change in the law in favor of wireless telephone carriers” and, relevant to this case,
“fundamentally impacts the relevant legal standard for determining whether Defendant
has effectively prohibited [Plaintiff] T-Mobile from providing service in violation of 47
U.S.C. § 332(c)(7)(B)(i)(II).” (Doc. # 66 at 7.) Defendant responds that the Declaratory
Ruling is inapplicable to Plaintiffs’ claims. (Doc. # 79 at 24–36.) The three Motions for
Summary Judgment are now fully briefed. (Doc. ## 76, 77, 79, 85–87.)
On April 10, 2019, Plaintiffs filed the Motion for Oral Argument presently before
the Court. (Doc. # 88.) Plaintiffs assert that in light of the Declaratory Ruling and
because this matter now includes two consolidated cases, each with “a different
proposed telecommunication facility site” and “specific factual issues,” oral argument will
assist the Court in clarifying the issues addressed in the parties’ Motions for Summary
Judgment. (Id. at 2–3.) Defendant responded to Plaintiffs’ Motion for Oral Argument on
April 26, 2019. (Doc. # 89.) It concedes that oral argument on the effect, if any, of the
Declaratory Ruling “might assist” the Court and implies that it wishes to respond to
Plaintiff T-Mobile’s Reply in support of its Motion for Summary Judgment (Doc. # 86).
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(Doc. # 89 at 2–3.) However, Defendant asserts that oral argument on the factual
record is not necessary because the parties’ briefs “adequately focus the Court on the
disputed issues in this case.” (Id. at 3.) Plaintiffs filed a Reply in support of oral
argument on April 29, 2019. (Doc. # 90.)
II.

DISCUSSION

The Court agrees with the parties that oral argument on the effect of the
Declaratory Ruling on this case would be beneficial as its considers the parties’ Motions
for Summary Judgment. Accordingly, the Court grants Plaintiffs’ Motion for Oral
Argument (Doc. # 88) to the extent Plaintiffs seek to address the Declaratory Ruling.
However, the Court will not hear argument on the factual record. As Defendant
asserts, the parties’ lengthy briefs have adequately cited the record and focused the
Court on the issues of disputed fact. See (Doc. # 89 at 3.) The Court therefore denies
Plaintiff’s Motion for Oral Argument (Doc. # 88) with respect to further development of
the factual record of this case.
III.

CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs’ Motion for Oral Argument. (Doc. # 88.) It will hear oral argument on the effect
of the Declaratory Ruling but not on the factual record of this dispute. It is
FURTHER ORDERED that within five (5) business days of the date of this Order,
the parties shall confer and have one attorney email the Court
([e-mail]) with proposed dates and times at which all

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parties are available for oral argument. The Court will set aside two hours for oral
argument.

DATED: May 29, 2019

BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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