Atlanta Channel, Inc. v. Solomon

• Decision Date: 29 January 2022
• Docket Number: Civil Action No. 15-1823 (RC)
• Parties: The ATLANTA CHANNEL, INC., Plaintiff, v. Henry A. SOLOMON, Defendant.
• Court: U.S. District Court — District of Columbia

583 F.Supp.3d 174

The ATLANTA CHANNEL, INC., Plaintiff,

v.Henry A. SOLOMON, Defendant.

Civil Action No. 15-1823 (RC)

United States District Court, District of Columbia.

Signed January 29, 2022

James A. Allen, Allen Legal, PLLC, Ashburn, VA, W. James Mac Naughton, Newton, NJ, for Plaintiff.

David B. Stratton, Jordan Coyne LLP, Fairfax, VA, for Defendant.

MEMORANDUM OPINION

DENYING PLAINTIFF'S MOTIONS FOR PARTIAL SUMMARY JUDGMENT , GRANTING CERTAIN MOTIONS IN LIMINE IN WHOLE , DENYING CERTAIN MOTIONS IN LIMINE IN WHOLE , GRANTING CERTAIN MOTIONS IN LIMINE IN PART , AND DENYING CERTAIN MOTIONS IN LIMINE IN PART

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Atlanta Channel, Inc. has filed two motions for partial summary judgment, and both parties have filed several motions in limine in advance of trial. The Court addresses each motion in turn below.

II. BACKGROUND¹

Plaintiff Atlanta Channel, Inc. ("ACI") brought this legal malpractice lawsuit after its attorney, Defendant Henry Solomon, filed an incomplete license application on its behalf with the Federal Communications Commission ("FCC"). See Second Am. Compl. ¶¶ 26–29, 73–79, ECF No. 69. Solomon's mistake led to the FCC dismissing ACI's application, costing the company Class A status for its low-power television ("LPTV") license, which bears the call-sign WTHC-LD. Settlement Agreement, ECF No. 263-2. A Class A license protects an LPTV station against displacement from its assigned broadcast frequency by full-power television stations. See Second Am. Compl. ¶¶ 19–20.

Solomon helped ACI administratively appeal the dismissal. See 1st Mac Naughton Decl., Exs. A–B, ECF No. 261-3. But after waiting over a decade to decide the appeal, the FCC eventually denied it. Id. Ex. E, at 13–18. In the meantime, ACI had transferred its existing LPTV license to Beach TV Properties. Second Am. Compl. ¶ 40. ACI and Beach TV are both owned and operated by Jud Colley and Toni Davis. See 2d Colley Decl. ¶ 2, ECF No. 261-4. Beach TV, describing itself as ACI's "successor," asked the FCC to reconsider the appeal denial. See 1st Mac Naughton Decl., Ex. C. The FCC denied that request too. See id. Ex. E, at 21–29.

In a last-ditch effort to obtain the Class A license, Beach TV (noting that it was "formerly known as" ACI) filed suit in the D.C. Circuit. See id. Ex. D. ACI's lawyer in the current proceedings, W. James Mac Naughton, prosecuted the appeal. See 1st Mac Naughton Decl. ¶ 4. The D.C. Circuit affirmed the FCC's decisions in a short opinion. See Beach TV Props., Inc. v. FCC , 617 F. App'x 10 (D.C. Cir. 2015) (per curiam). It explained that it lacked jurisdiction to hear three of Beach TV's claims because Beach TV did not raise them "at any stage of the administrative adjudication." Id. at 10. Two other claims were untimely because Beach TV first raised them in a motion for reconsideration. Id. And two claims were "not barred on appeal but lack[ed] merit" because the FCC did not abuse its discretion by rejecting ACI's license application based on a "material deficiency" or by refusing to extend the deadline to submit the application. Id. at 11.

According to ACI, the absence of Class A status for its LPTV license and subsequent regulatory developments ultimately forced it to relocate from its longtime channel, ultra high frequency ("UHF") Channel 42, to a channel with inferior distribution capabilities. Decl. Jud Colley Supp. Pl.’s Mot. In Lim. Regarding Evidence of Pl.’s Expenses ¶¶ 14–15, ECF No. 269-1 ("Colley Expenses Decl."). ACI says that if it had held Class A status, it would have been entitled to instead move to a channel with the same coverage as UCF Channel 42. Id.

It is unnecessary to review the long and complicated procedural history of this case from there. As things currently stand, the parties agree that Solomon is liable for malpractice. See Settlement Agreement. The question remaining for trial is what damages Solomon owes ACI, see Settlement Agreement—which once again holds the existing LPTV license, see 2d Mac Naughton Decl., Ex. C, at 93:22–95:19, ECF No. 267-2. ACI has filed two motions for partial summary judgment, and both parties have filed several motions in limine in advance of trial.

III. LEGAL STANDARDS

A. Summary Judgment

A party deserves summary judgment only if it "shows that there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those that could affect the outcome of the litigation, and genuine disputes about material facts exist when the evidence would allow a reasonable jury to return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court assessing a summary judgment motion must avoid credibility determinations and draw all inferences in the nonmovant's favor. Id. at 255, 106 S.Ct. 2505. But conclusory assertions without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999).

B. Motions In Limine

"While neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence expressly provide for motions in limine , the Court may allow such motions ‘pursuant to the district court's inherent authority to manage the course of trials.’ " Barnes v. District of Columbia , 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States , 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) ). "Motions in limine are designed to narrow the evidentiary issues at trial." Williams v. Johnson , 747 F. Supp. 2d 10, 14 (D.D.C. 2010). Importantly, a trial judge's discretion "extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial." Barnes , 924 F. Supp. 2d at 79 (quoting Graves v. District of Columbia , 850 F. Supp. 2d 6, 11 (D.D.C. 2011) ). "[A] motion in limine should not be used to resolve factual disputes or weigh evidence." C & E Servs., Inc. v. Ashland Inc. , 539 F. Supp. 2d 316, 323 (D.D.C. 2008) (citation omitted).

"In evaluating the admissibility of proffered evidence on a pretrial motion in limine the court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to Federal Rules of Evidence 401 and 402." Daniels v. District of Columbia , 15 F. Supp. 3d 62, 66 (D.D.C. 2014). "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. Relevant evidence is admissible unless otherwise provided by the U.S. Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by the U.S. Supreme Court. See Fed. R. Evid. 402. "Irrelevant evidence is not admissible." Id. Further, Federal Rule of Evidence 403 provides that a court may "exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.

"The burden is on the introducing party to establish relevancy as well as admissibility." Corrigan v. Glover , 254 F. Supp. 3d 184, 191 (D.D.C. 2017) (cleaned up).

IV. ANALYSIS: MOTIONS FOR SUMMARY JUDGMENT

A. Locally Produced Programming

ACI moves for partial summary judgment in the form of an order declaring that the programming broadcast on its LPTV station in Atlanta, WTHC-LD, is "locally produced programming" within the meaning of the statutes and regulations governing Class A licenses. Pl.’s Mot. Partial Summ. J. for an Order Declaring WTHC Programming is "Locally Produced Programming," ECF No. 301.

To understand this request, it is first necessary to review the statutory and regulatory requirements that governed ACI's pursuit of Class A status, beginning in 1999. Congress enacted the Consumer Broadcasters Protection Act of 1999 ("CBPA") "to ensure community access to locally-originated programming." Atlanta Channel, Inc. v. Solomon , No. CV 15-1823, 2020 WL 1508587, at *2 (D.D.C. Mar. 30, 2020). The CBPA directed the FCC to create a new category of television license, the Class A, that would provide to qualifying low power television ("LPTV") stations the same privileges full power stations enjoyed. See 47 U.S.C. § 336(f). An LPTV station qualified for Class A status if:

(A)(i) during the 90 days preceding November 29, 1999—

(I) such station broadcast a minimum of 18 hours per day;

(II) such station broadcast an average of at least 3 hours per week of programming that was produced within the market area served by such station, or the market area served by a group of commonly controlled low-power stations that carry common local programming produced within the market area served by such group; and

(III) such station was in compliance with the Commission's requirements applicable to low-power television stations; and

(ii) from and after the date of its application for a [C]lass A license, the station is in compliance with the [FCC's] operating rules for full-power television stations[.]

47 U.S.C. § 336(f)(2). An LPTV station wishing to obtain Class A status had to first file a statement of eligibility certifying that it met these criteria; unless the statement was materially deficient, the FCC was to certify that the station could apply for a Class A designation within six months of the FCC's promulgation of Class A rules in June 2000. Atlanta Channel, Inc. , 2020 WL 1508587, at *2–3.

The FCC's implementing regulations developed two principal requirements for Class A status. First, as an implementation of the CBPA's mandate that Class A LPTV stations comply with the operating requirements for full-power stations, 47 U.S.C. § 336(f)(2)(A)(ii), the FCC announced the "main studio...