Qwest Broadband Services, Inc. v. City of Boulder

Citation151 F.Supp.2d 1236
Decision Date19 July 2001
Docket NumberNo. CIV. A. 00-B-542.,CIV. A. 00-B-542.
PartiesQWEST BROADBAND SERVICES, INC, a Delaware corporation, Plaintiff, v. CITY OF BOULDER, Colorado, Defendant.
CourtU.S. District Court — District of Colorado

David H. Stacy, Davis, Graham & Stubbs LLP, United States District Court, Denver, CO, John Brian DeBoice, Cohn & Marks, Washington, DC, for plaintiff.

Alan Edgar Boles, Jr., Joseph Napoleon De Raismes, City Attorney's Office, Boulder, CO, for defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

Plaintiff Qwest Broadband Services, Inc. ("Qwest") brings this declaratory judgment suit against Defendant City of Boulder, Colorado ("City" or "Boulder"). Qwest moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Boulder moves for partial summary judgment. The motions are adequately briefed and oral argument would not materially aid their resolution. For the reasons set forth below, I grant Qwest's motion for judgment on the pleadings and deny Boulder's motion for partial summary judgment.

I. Facts

The parties have entered into a stipulated agreement regarding the facts in this case. Qwest Broadband Services is a wholly owned subsidiary of Qwest Communications International, Inc. incorporated under the laws of Delaware and with its principal place of business in Colorado. Qwest currently provides cable television programming in Boulder through a revocable permit granted by Boulder. Boulder also has two other cable television operators, TCI Communications, Inc. ("TCI") and Wild Open West Colorado, LLC. ("WOWC"). TCI operates through a revocable permit granted by Boulder, while WOWC operates through a twelve-year franchise.

Because the permit under which Qwest currently operates allows the City to cancel at any time and for any reason, Qwest seeks a franchise allowing it to provide long-term cable television services within the City. A provision in Boulder's Charter requires that voters in a municipal election approve any franchise before it is granted by the City. Wishing to avoid the expense of such an election, Qwest brings this suit, arguing that the election provision is preempted by certain provisions of federal law, set out in Part III, infra.

II. Standards for the Motions

Qwest moves for judgement pursuant to Fed.R.Civ.P. 12(c), while Boulder moves pursuant to Fed.R.Civ.P. 56. I first consider the applicable standards for each motion.

A. Motion for Judgment on the Pleadings

Fed.R.Civ.P. 12(c) provides that,

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Here, Qwest attaches matters outside the pleadings as exhibits. I therefore consider the parties' motions as cross-motions for summary judgment.

B. Motion for Summary Judgment

The purpose of a summary judgment motion is to assess whether trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Rule 56(c) provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, that it believes demonstrate the absence of genuine issues for trial. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Rule 56(e); see also Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980). These facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Where, as here, the parties file cross motions for summary judgment, I assume no evidence need be considered other than that filed by the parties.

III. Cross-Motions for Summary Judgment

Qwest moves for a declaratory judgment, arguing that the franchise provision in the Boulder charter is preempted by federal law. The Charter states, "No franchise shall be granted by the city except upon the vote of the qualified taxpaying electors ...." City Charter at Article VIII § 108 (attached to Complaint). The parties agree that this section applies to cable television franchises. See also Community Tele-Communications, Inc. v. Heather Corp., 677 P.2d 330 (Colo.1984).

Qwest argues that § 108 is preempted by section 621(a)(1) of Title VI of the Communications Act of 1934 as amended. That statute states in pertinent part:

A franchising authority may award, in accordance with the provisions of this subchapter, 1 or more franchises within its jurisdiction; except that a franchising authority may not grant an exclusive franchise and may not unreasonably refuse to award an additional competitive franchise. Any applicant whose application for a second franchise has been denied by a final decision of the franchising authority may appeal such final decision pursuant to the provisions of section 555 of this title for failure to comply with this subsection.

47 U.S.C. § 541(a)(1) (emphasis added).

A. Federal Preemption Doctrine

The doctrine of preemption originates in the Supremacy Clause of the United States Constitution. That clause states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ..., shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. CONST., art. VI, cl. 2. See also Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 1, 211, 6 L.Ed. 23 (1824) ("In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it."). State law that conflicts with federal law is without effect. See M'Culloch v. Maryland, 4 Wheat. 316, 17 U.S. 316, 4 L.Ed. 579 (1819).

Preemption is fundamentally a question of congressional intent. A court must presume that "the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Congressional intent to monopolize an area is expressed in the authorizing statute and in the regulations enacted pursuant to that statute. See Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985).

A statute or regulation may be construed as being preemptive under three circumstances. See Cipollone, 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407. First, Congress's intent to preempt state law may be explicitly stated in the statute. See Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Second, in the absence of express statutory language, preemption may be inferred from a "scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Rice, 331 U.S. at 230, 67 S.Ct. 1146; see also Hillsborough County, 471 U.S. at 713, 105 S.Ct. 2371. Implied preemption also occurs when "`the Act of Congress ... touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" Fidelity Fed. Sav. and Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) (quoting Rice, 331 U.S. at 230, 67 S.Ct. 1146). Third, preemption exists when state law conflicts with federal law. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Hines v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 85 L.Ed. 581 (1941).

The parties agree that preemption occurs here, if at all, due to conflict preemption. Conflict preemption is implicated when it is impossible for a private party to simultaneously comply with both state and federal laws, see Ray, 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179; Florida Lime and Avocado Growers, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248, or where the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, 312 U.S. at 67-68, 61 S.Ct. 399. See also Keith v. Rizzuto, 212 F.3d 1190, 1193 (10th Cir.2000) (quoting Southwestern Bell Wireless Inc. v. Johnson County Bd. of County Comm'rs, 199 F.3d 1185, 1189-90 (10th Cir.1999)). "Conflict preemption requires that the state or local action be a material impediment to the federal action, or thwart[ ] the federal policy in a material way." Mount Olivet Cemetery Ass'n v. Salt Lake City, 164 F.3d 480, 489 (10th Cir.1998) (internal quotations and citations omitted).

Congress has made its intent regarding the preemptive effect of Title VI clear. 47 U.S.C. § 556 states, "Nothing in this...

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