P.R. Tel. Co. v. San Juan Cable Co.

• Decision Date: 25 July 2016
• Docket Number: 3:11-cv-02135-JAW
• Citation: 196 F.Supp.3d 207
• Parties: PUERTO RICO TELEPHONE COMPANY, INC., Plaintiff, v. SAN JUAN CABLE COMPANY LLC d/b/a Onelink Communications, Defendant.
• Court: U.S. District Court — District of Puerto Rico

196 F.Supp.3d 207

PUERTO RICO TELEPHONE COMPANY, INC., Plaintiff,

v.SAN JUAN CABLE COMPANY LLC d/b/a Onelink Communications, Defendant.

3:11-cv-02135-JAW

United States District Court, D. Puerto Rico.

Signed July 25, 2016

Hugh M. Stanley, John Q. Lewis, Michael C. Brink, Richard A. Dean, Patrick J. Pascarella, Tucker Ellis LLP, Cleveland, OH, Luis A. Oliver-Fraticelli, Ricardo L. Ortiz-Colon, Fiddler Gonzalez & Rodriguez, P.S.C., San Juan, PR, Anne S. Cruz, Tucker Ellis LLP, Los Angeles, CA, Dylan M. Carson, Sandy M. Eloranto, Tucker Ellis LLP, Denver, CO, for Plaintiff.

Brian K. Grube, Johanes C. Maliza, Nicholas B. Wille, Tracy K. Stratford, Thomas Demitrack, Jones Day, Cleveland, OH, Michael R. Shumaker, Kathryn M. Fenton, Jones Day, Washington, DC, Orlando Fernandez, Orlando Fernandez Law Offices, Guaynabo, PR, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S FIRST MOTION FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

In this federal and state antitrust action, Puerto Rico Telephone Company, Inc. (PRTC) claims that San Juan Cable Company LLC d/b/a OneLink Communications (OneLink) violated antitrust laws by conducting "sham" litigation over a period of four years, which PRTC claims delayed its entry into the competitive market. In view of the record and Supreme Court caselaw, the Court concludes that under Federal Rule of Civil Procedure 56, OneLink is entitled to summary judgment for those events that fall within the scope of Noerr -Pennington immunity and for those time periods that otherwise do not raise a genuine dispute of material fact. The Court denies OneLink's motion for summary judgment for the remaining periods as there are genuine disputes of material fact that require jury resolution.

I. STATEMENT OF FACTS

A. Procedural History

On November 22, 2011, PRTC filed a complaint against OneLink, alleging in two counts that OneLink violated Sections 2 and 3 of the Sherman Act, 15 U.S.C. §§ 2 -3, and two counts that OneLink violated the corresponding Puerto Rico Anti-Monopoly Act, P.R. LAWS ANN. 10, § 260. Compl. ¶¶ 7, 61-92 (ECF No. 1). On December 16, 2011, PRTC filed an amended complaint containing the same alleged violations of federal and state antitrust law. Am. Compl. ¶¶ 7, 64-95 (ECF No. 11). As pertains to this Order, PRTC alleges that OneLink "embarked on a course of conduct designed to thwart, or at a minimum delay, PRTC's entry into OneLink's markets" by "hijacking of Board proceedings, numerous unsuccessful motions to disqualify one of the commissioners, and the filing and vigorous prosecution of multiple objectively baseless lawsuits in both state and federal court—every one of which (with the exception of the most recent attack which has not yet been ruled upon by the court) was resolved against OneLink." Id. ¶ 4.

On January 24, 2012, OneLink filed a motion to dismiss PRTC's Amended Complaint. Def.'s Mot. to Dismiss Pl.'s Am. Compl. (ECF No. 22) (Mot. to Dismiss ). PRTC filed its opposition to OneLink's motion to dismiss on February 24, 2012, and OneLink replied on March 9, 2012. Pl.'s Opp'n to Def.'s Mot. to Dismiss Pl.'s Am. Compl. (ECF No. 23); Def.'s Reply in Further Support of Its Mot. to Dismiss Am. Compl. (ECF No. 25). On August 10, 2012, Judge Gelpi denied OneLink's motion to dismiss, and subsequently affirmed his decision on OneLink's motion for reconsideration on September 13, 2012. Opinion and Order (ECF No. 30) (First Opinion and Order ); Opinion and Order (ECF No. 45) (Second Opinion and Order ). Judge Gelpi also denied OneLink's request for interlocutory appeal to the First Circuit. Second Opinion and Order. On October 5, 2012, OneLink answered the Amended Complaint, denying its essential allegations and asserting nine affirmative defenses. Answer to Am. Compl. (ECF No. 50) (Answer ).

After nearly a year of discovery, OneLink filed a motion for summary judgment with a supporting statement of material facts on October 11, 2013. Def.'s Mot. for Summ. J. (ECF No. 198) (Def.'s Mot. ); Def.'s Statement of Undisputed Material Facts in Support of Its Mot. for Summ. J. (ECF No. 199) (DSMF). PRTC responded to OneLink's motion and its statement of material facts, and filed a statement of additional material facts on November 7, 2013. Pl.'s Opp'n to Def.'s Mot. for Summ. J. (ECF No. 215) (Pl.'s Opp'n ); Pl.'s Opposing Statement of Material Facts (ECF No. 216) (PRDSMF; PSAMF). On November 22, 2013, OneLink replied to PRTC's response and to its statement of additional material facts. Def.'s Reply Br. in Support of Its Mot. for Summ J. (ECF No. 226) (Def.'s Reply ); Reply to Pl.'s Opposing Statement of Material Facts and Statement of Additional Material Facts (ECF No. 227) (DRPSAMF). On November 27, 2013, PRTC filed a surreply. Pl.'s Surreply in Opp'n to Def.'s Mot. for Summ. J. (ECF No. 231) (Pl.'s Surreply ).

On December 4, 2014, Judge Gelpi recused himself from presiding over this case, and on January 26, 2015, the case was reassigned to this Judge. Order (ECF No. 305); Notice of Judge Assignment (ECF No. 307). The Court held oral argument on OneLink's motion for summary judgement on May 31, 2016. Entry (ECF No. 315); Tr. of Proceedings (ECF No. 319) (Tr. ).

B. Factual Background¹

1. PRTC's First Application for a Video Franchise in February 2008; Application Denied in October 2008

PRTC filed its first application for a video franchise in February 2008. DSMF ¶ 1; PRDSMF ¶ 1. PRTC's first application was unanimously denied by the Telecommunications Regulatory Board of Puerto Rico (TRB) on October 29, 2008.² DSMF ¶ 2; PRDSMF ¶ 2. In denying PRTC's first application for a video franchise, the TRB stated that it had based its decision on the application and on testimony submitted at a public hearing held in September and October 2008; the TRB made 22 separate determinations of findings of fact, including Number 3, which notes that OneLink submitted comments to the TRB as an interested party.³ DSMF ¶ 3; PRDSMF ¶ 3. During the interval between February 2008 and November 2008, OneLink filed no litigation against or relating to PRTC in any Puerto Rico or federal court. DSMF ¶ 4; PRDSMF ¶ 4.

2. PRTC's Second Application for a Video Franchise in December 2008; OneLink's Litigation between January 2009 and November 2011; Application Granted in November 2011

On December 11, 2008, PRTC submitted a second application for a video franchise to the TRB. DSMF ¶ 5; PRDSMF ¶ 5. Commencing on January 13, 2009, OneLink filed four motions with the TRB, three of which were unsuccessful, and one complaint in this Court naming the TRB as a defendant: (1) Motion to Intervene before the TRB (filed January 13, 2009, denied March 2, 2009); (2) Motion to Vacate or Stay Confidentiality Determinations (filed January 30, 2009, denied March 2, 2009); (3) Urgent Motion for Extension of Time to file Comments (filed February 11, 2009, denied February 17, 2009); (4) Urgent Motion to Dismiss PRTC Application (filed February 25, 2009); and (5) Cable Act Complaint (filed February 10, 2009 in federal court, district court order on OneLink's motion for injunctive relief finding that it has demonstrated a "strong likelihood of success on the merits" on February 18, 2009, and dismissed as moot on February 24, 2009).⁴ PSAMF ¶ 1; DRPSAMF ¶ 1. Based on the filing of the Motion to Intervene before the TRB by OneLink, and motions for protection of confidential information filed by PRTC, the TRB vacated the previously scheduled February 11-13, 2009 hearing dates, and reset them for March 4-6, 2009.^{5 ,6} PSAMF ¶ 2; DRPSAMF ¶ 2.

On March 3, 2009, before the TRB's scheduled hearing on PRTC's second application for a video franchise and at the request of OneLink, the Puerto Rico Court of Appeals issued an order staying the TRB's consideration thereof, and on April 24, 2009 extended the stay until March 31, 2009.⁷ DSMF ¶ 6; PRDSMF ¶ 6; PSAMF ¶ 3; DRPSAMF ¶ 3. As of the lifting of the stay by the Puerto Rico Court of Appeals on March 31, 2009, the TRB had not ruled on the Urgent Motion to Dismiss PRTC Application.⁸ PSAMF ¶ 5; DRPSAMF ¶ 5.

OneLink then filed additional motions and memoranda with the TRB: (1) Emergency Motion to Show Cause (filed April 7, 2009); (2) Opposition to PRTC's Motion to File Reply Comments (filed April 23, 2009, denied May 13, 2009); and (3) Motion to Set Aside Public Hearing (filed April 27, 2009, denied May 1, 2009).^{9 ,10} PSAMF ¶ 6; DRPSAMF ¶ 6. On May 20, 2009, before the TRB's rescheduled hearing on PRTC's second application for a video franchise and at the request of OneLink, the Puerto Rico Supreme Court issued an order staying the TRB's consideration thereof; the stay remained in effect until October 26, 2010.¹¹ DSMF ¶ 7; PRDSMF ¶ 7. As of October 26, 2010, OneLink had no pending litigation against or relating to PRTC in any Puerto Rico or federal court. DSMF ¶ 8; PRDSMF ¶ 8.

On November 24, 2010, TRB proceedings on PRTC's franchise application resumed after the Supreme Court rejected OneLink's appeal; the TRB notified the parties named in the Resolution and Order on December 21, 2010.¹² PSAMF ¶ 8; DRPSAMF ¶ 8. On January 3, 2011, PRTC supplemented its application given the two years since its December 2008 submission.¹³ PSAMF ¶ 9; DRPSAMF ¶ 9.

Before the TRB could set a hearing date, on January 20, 2011, OneLink filed a motion to recuse TRB President Sandra Torres from any further involvement in the proceedings.¹⁴ PSAMF ¶ 10; DRPSAMF ¶ 10. President Torres, in her capacity as President and Associate Member of the TRB, sought advice from the Office of Government Ethics of Puerto Rico (OGE) in a letter dated February 24, 2011, and on March 29, 2011, the OGE responded and concluded that there was no merit to OneLink's claims.¹⁵ PSAMF ¶ 11; DRPSAMF ¶ 11. On April 6, 2011, the TRB scheduled a hearing on PRTC's franchise application for April 27, 2011. PSAMF ¶ 12; DRPSAMF ¶ 12. In total, ninety-seven days passed from the time OneLink filed its Motion for Recusal for the TRB's...