# Crown Castle Fiber LLC v. City of Rochester, New York

> District Court, W.D. New York · August 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10365243

## Case

- **Court:** District Court, W.D. New York
- **Decided:** August 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10365243

## How later opinions describe it (automated extraction)

- explaining circumstances in which regulatory takings may occur

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________

CROWN CASTLE FIBER LLC,

Plaintiff,
DECISION AND ORDER
v.
6:20-CV-06866 EAW
CITY OF ROCHESTER, NEW YORK,
MALIK D. EVANS, as the Mayor of the
City of Rochester (in his official capacity),
RICHARD PERRIN, as the Commissioner,
City of Rochester Department of
Environmental Services (in his official
capacity), ROCHESTER CITY
COUNCIL,1

Defendants.
____________________________________

INTRODUCTION
Plaintiff Crown Castle Fiber LLC (“Plaintiff” or “Crown Castle”) seeks declaratory
and injunctive relief against defendants the City of Rochester (“the City”), City of
Rochester Mayor Malik D. Evans in his official capacity, City of Rochester Department of
Environmental Services Commissioner Richard Perrin in his official capacity, and the
Rochester City Council (collectively “Defendants”) related to the City of Rochester
Telecommunications Code (the “Telecom Code”). (Dkt. 1). More particularly, Plaintiff

1 Malik D. Evans became Mayor of the City of Rochester and Richard Perrin became
Commissioner of the City of Rochester Department of Environmental Services in January
of 2022. They have been automatically substituted as defendants pursuant to Federal Rule
of Civil Procedure 25(d). The Clerk of Court is directed to amend the caption of this case
to reflect the same.
asserts the following claims: (1) violations of Section 253 of the Federal Communications
Act of 1934, 47 U.S.C. § 253 (“Section 253”) and of Section 332 of the Federal
Communications Act of 1934, 47 U.S.C. § 332 (“Section 332”); (2) violations of Section

7803 of the New York Civil Practice Law & Rules (“CPLR 7803”); (3) violation of the
dormant Commerce Clause, U.S. Const. Art. I, § 8, Cl. 3; (4) violation of the Takings
Clause, U.S. Const. Amend. V; and (5) violation of the First Amendment right to freedom
of speech, U.S. Const. Amend. I. (Id.).
Pending before the Court are Plaintiff’s motion for partial summary judgment (Dkt.

26) and Defendants’ cross-motion for summary judgment (Dkt. 30). For the reasons
discussed below, the Court denies in their entireties both parties’ motions.
BACKGROUND
The following facts are taken from the parties’ respective statements of undisputed
facts and responses thereto (Dkt. 26-2; Dkt. 30-7; Dkt. 33-1), as well as the exhibits

submitted by the parties. The Court has noted relevant factual disputes.
I. The Court’s Cellco Decision
As an initial matter, contemporaneously with entry of this Decision and Order, the
Court has entered a Decision and Order in the related case of Cellco Partnership v. City of
Rochester, No. 6:19-cv-006583 (the “Cellco Case”). See id., Dkt. 65 (W.D.N.Y. August

22, 2022) (the “Cellco Decision”). Like Crown Castle, the plaintiff in the Cellco Case has
also asserted challenges to the Telecom Code under Section 253. In the Cellco Decision,
the Court denied the parties’ competing motions for summary judgment, making numerous
findings that are relevant here. Those findings include: (1) the Court has the authority to
hear a cause of action for a violation of Section 253; (2) the Federal Communications
Commission’s (“FCC”) declaratory ruling and report and order entitled In the Matter of
Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure

Inv., 33 F.C.C. Rcd. 9088 (2018) (the “Small Cell Order”) applies to challenges to the
Telecom Code brought under the Federal Communications Act, including challenges to the
City’s fees for linear underground and aerial telecommunications facilities; (3) pursuant to
the Small Cell Order, the City bears the burden of demonstrating that its fees are cost-
based; and (4) issues of fact exist regarding whether the fees contained in the Telecom

Code are a reasonable approximation of the City’s costs.
The Cellco Decision is incorporated by reference into the instant Decision and
Order, and familiarity with its contents, reasoning, and conclusions is assumed. The Court
accordingly will not repeat the factual background set forth therein regarding small cell
infrastructure, the adoption of the Small Cell Order, the City’s Rules and Regulations for

Work in the Right-of-Way, City of Rochester, New York (the “ROW Rules”), and the
adoption of the Telecom Code.
II. Crown Castle’s Activities in the City’s Right-of-Way (“ROW”) and Payment
of Fees under the Telecom Code

Crown Castle is a New York limited liability company that “builds and installs
telecommunications facilities that provide transport and backhaul telecommunications
services to other carriers, including providers offering personal wireless services,
throughout the State of New York.” (Dkt. 26-2 at ¶ 1; Dkt. 30-7 at ¶ 1). Crown Castle
submitted a registration application and $1,000 payment to the City on September 28, 2019,
pursuant to the Telecom Code. (Dkt. 26-2 at ¶ 18; Dkt. 30-7 at ¶ 18).
On December 18, 2019, Crown Castle paid the City a $1,430 annual maintenance

fee. (Dkt. 26-2 at ¶ 19; Dkt. 30-7 at ¶ 19). On December 23, 2019, the City issued Crown
Castle an “Annual Maintenance/Annual Utility Maintenance Permit.” (Dkt. 26-2 at ¶ 20;
Dkt. 30-7 at ¶ 20). Crown Castle and the City executed a master license agreement
(“MLA”) in May 2020. (Dkt. 26-2 at ¶ 24; Dkt. 30-7 at ¶ 24). Crown Castle received an
invoice from the City for “Telecom Fees (ROW) 2019” in the amount of $158,830.91.

(Dkt. 26-2 at ¶ 37; Dkt. 30-7 at ¶ 37).
PROCEDURAL HISTORY
Plaintiff commenced this action by filing its complaint and attached exhibits on
October 20, 2020. (Dkt. 1; Dkt. 3). Defendants answered the complaint on November 14,
2020. (Dkt. 12).

Factual discovery closed on July 1, 2021. (Dkt. 24). Expert discovery closed on
October 22, 2021. (Id.).
Plaintiff filed its motion for summary judgment on November 1, 2021. (Dkt. 26).
Defendants filed their response and cross-motion for summary judgment on December 6,
2021. (Dkt. 30). Plaintiff filed a reply in further support of its motion and response to

Defendants’ cross-motion on January 3, 2022. (Dkt. 33). Defendants filed a reply in
further support of their cross-motion on January 17, 2022. (Dkt. 34).
DISCUSSION
I. Standard on Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the Court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
“The moving party bears the burden of showing the absence of a genuine dispute as
to any material fact. . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to carry the
non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the
moving party has met its burden, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011)). Specifically, the non-moving party “must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654
F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986). “Moreover, even when both parties move for summary
judgment, asserting the absence of any genuine issues of material fact, a court need not
enter judgment for either party. Rather, each party’s motion must be examined on its own
merits, and in each case all reasonable inferences must be drawn against the party whose
motion is under consideration.” Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir.

2001).
II. Cause of Action for Violation of Section 253
The parties’ dispute regarding the viability of Plaintiff’s Section 253 claim largely
mirrors the dispute in the Cellco Case. However, in the Cellco Case, the City did not argue
“that Congress took any action to limit the Court’s ability to grant equitable relief related

to violations of Section 253.” Cellco Decision at 10. Defendants have made that argument
in this case. (See Dkt. 34 at 1-3). Accordingly, the Court must analyze this contention.
The Supreme Court explained in Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.
320 (2015), that a federal court has the inherent authority to “grant injunctive relief against
state officers who are violating, or planning to violate, federal law,” unless prohibited from

doing so by statute. Id. at 326-27, 329. Such prohibition may be either express or implied.
Id. at 327.
Defendants argue that Section 253 implicitly prohibits the Court from granting
injunctive relief because it “includes an express administrative remedy at subsection (d) in
the event that State or local action prohibits or has the effect of prohibiting the provision
of telecommunications service” and because it contains “broad and unspecific language”
that is not “judicially administrable.” (Dkt. 34 at 2-3). The Court is unpersuaded by this

argument.
First, in Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d
133 (2d Cir. 2016), the Second Circuit held that the inclusion of an administrative remedy
in a statute “does not imply [Congress’s] intent to bar . . . parties from invoking federal
jurisdiction where, as here, they do so not to enforce the federal law themselves, but to

preclude a municipal entity from subjecting them to local laws enacted in violation of
federal requirements.” Id. at 146; see also Virgin Mobile USA, L.P. v. Pat Apple, No. 17-
CV-2524-JAR-JPO, 2018 WL 2926576, at *5 (D. Kan. June 7, 2018) (“The lack of a sole
remedy in the FCA renders discussion on whether §§ 254(f) and 253(a)’s mandates are
judicially unadministrable moot because both Armstrong factors are necessary to conclude

that Congress intended to preclude private enforcement in the courts. Without the presence
of the first Armstrong factor, the Court cannot find that Congress intended to preclude
private enforcement of the FCA as Defendants suggest.”).
Second, “unlike the Medicaid claim at issue in Armstrong, Plaintiff’s TCA-based
challenge to the [Telecom Code] would not require application of a judicially

unadministrable standard.” CNSP, Inc. v. Webber, No. CV 17-0355 KG/SCY, 2020 WL
2745456, at *7 (D.N.M. May 27, 2020) (rejecting implicit prohibition argument and
explaining that “[t]he TCA. . . sets forth a simple rule” and “several courts have already
considered similar preemption claims by telecommunications providers under § 253”).
Accordingly, there is simply no basis for the Court to find that it has been implicitly
prohibited from enjoining violations of Section 253. Defendants have cited no cases in
which a court has found to the contrary.

The remainder of the parties’ arguments about the cognizability of Plaintiff’s
Section 253 claim are resolved by the Cellco Decision.
III. Cause of Action for Violation of Section 332
Plaintiff has asserted two claims under Section 332. More specifically, Plaintiff
alleges two violations of Section 332(c)(7)(B)(i). Defendants argue that Plaintiff cannot

maintain these causes of action because “a precondition to bring a claim under [Section]
332 is that the City have made a decision concerning the ‘placement, construction, and
modification of personal wireless services facilities.’” (Dkt. 30-8 at 6 (quoting 47 U.S.C.
§ 332(c)(7)(A)). Plaintiff contends that this argument is foreclosed by the Small Cell
Order. (See Dkt. 33 at 11).

The Court agrees with Plaintiff. In the Small Cell Order, the FCC rejected the
argument that “Section 332(c)(7)(B)(i)(II) is limited exclusively to decisions on individual
requests and therefore must be interpreted differently than Section 253(a).” 33 F.C.C. Rcd.
at 9123 n. 206. The FCC further concluded that Section 332 and Section 253 “have the
same meaning and . . . reflect the same standard, including with respect to preemption of

fees that could ‘prohibit’ or have ‘the effect of prohibiting’ the provision of covered
service.” Id. at 9124 (emphasis added). For reasons discussed at length in the Cellco
Decision, the Court has determined that the Small Cell Order was a reasonable
interpretation of the relevant statutes by the FCC and that it is accordingly entitled to
deference. The Court accordingly finds that Plaintiff can pursue its challenge to the City’s
fees under both Section 253 and Section 332.
IV. Genuine Issues of Material Fact Exist Regarding the Reasonableness of the
City’s Fees

Plaintiff seeks summary judgment that the fees set forth in the Telecom Code are
excessive and accordingly violate Sections 253(a) and 332(c)(7)(B)(i)(II). (Dkt. 26-1 at
17). However, the Court has already concluded for reasons discussed at length in the
Cellco Decision that genuine issues of material fact exist regarding whether the City’s fees
are reasonably based on its costs, as required by the Small Cell Order. The arguments
proffered by Plaintiff do not change this conclusion. While Plaintiff devotes much of its
motion to attacking the manner in which the City claims to have estimated its costs, that

kind of factual dispute is not amenable to resolution on a motion for summary judgment.
See, e.g., Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003) (“[I]t is well
established that ‘[c]redibility assessments, choices between conflicting versions of the
events, and the weighing of evidence are matters for the jury, not for the court on a motion
for summary judgment.’” (quoting Fischl v. Armitage, 128 F.3d 50, 55-56 (2d Cir. 1997))).

This is particularly true because the City is required only to show that the fees at issue are
a reasonable estimate of its actual costs. Reasonableness is not the sort of determination
that is generally amenable to resolution as a matter of law. Cf. Matzkow v. United New
York Sandy Hook Pilots Ass’n, No. 18-CV-2200 (RER), 2022 WL 79725, at *11 (E.D.N.Y.
Jan. 7, 2022) (“[C]ourts are generally reluctant to grant summary judgment in negligence
cases because the assessment of reasonableness is generally a question of fact in all but the
most extreme cases.”).
Plaintiff does make a handful of arguments not addressed in the Cellco Decision,

which the Court has considered. First, Plaintiff contends that “a straightforward
aggregation analysis demonstrates that the City’s fiber fees are more than double those that
other courts have found violate federal law,” because if the per-foot-fee charged by the
City “were applied to all 80,000 route-miles of fiber owned by Crown Castle . . . the total
annual fee burden would exceed $219 million,” which is “roughly twelve percent of Crown

Castle’s publicly reported revenue attributable to fiber in 2020.” (Dkt. 26-1 at 30).
However, in both of the cases relied upon by Plaintiff—namely, TCG New York, Inc. v.
City of White Plains, 305 F.3d 67 (2d Cir. 2002) and Puerto Rico Tel. Co. v. Municipality
of Guayanilla, 450 F.3d 9 (1st Cir. 2006)—the courts did not simply perform an
aggregation analysis. Instead, after performing such an analysis, the TCG New York and

Puerto Rico Tel. Co. courts went on to consider whether the challenged ordinances were
reasonably related to the municipality’s actual costs. See Puerto Rico Tel Co., 450 F.3d at
22; TCG New York, 305 F.3d at 77-78. In other words, in neither case did the court adopt
the sort of bright-line rule that Plaintiff is urging the Court to apply in this case.
Second, Plaintiff argues that the Telecom Code violates other provisions of the

Small Cell Order, because it permits the City to require in-kind or alternative payments in
lieu of right-of-way use payments and because it allows the City to require regulated
entities to pay consultant fees. (Dkt. 26-1 at 31-32). However, Plaintiff has not come
forward with any evidence that these provisions of the Telecom Code have been applied to
it. Plaintiff has asked the Court in its motion for “a declaratory judgment finding the fee
structure set forth in the City’s Telecommunications Code is illegal, and directing
disgorgement of fees, plus interest, paid by Plaintiff to the City pursuant to the fee

structure.” (Dkt. 26 at 1 (emphasis added)). Plaintiff offers no explanation for how the
mere presence of these provisions in the Telecom Code—even assuming they run afoul of
the Small Cell Order—would entitle it to the relief it seeks. See Niagara Mohawk Power
Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 104 (2d Cir. 2012) (in
determining whether to exercise its discretion to issue a declaratory judgment, the Court

must consider, among other things, whether the judgment will serve a useful purpose in
clarifying or settling the involved legal issue and whether it will finalize the controversy
and offer relief from uncertainty).
Third, Plaintiff argues that “the City has tried to impose fees on Crown Castle in a
manner that nearly doubles the fee burden for 2020 and violates the plain language of the

contract between the parties.” (Dkt. 26-1 at 32). However, Plaintiff has failed to explain
how this purported breach of contract establishes a violation of either Section 253 or
Section 332, the scope of which is not defined by the parties’ agreement. In other words,
even accepting Plaintiff’s assertion that the City has violated the terms of the MLA does
not entitle Plaintiff to summary judgment on its claims pursuant to Sections 253 and 332,

if in fact the fees charged by the City represented a reasonable approximation of its actual
costs.
Finally, Plaintiff argues that the City’s fees “separately violate Sections 253 and 332
because they are unlawfully discriminatory.” (Dkt. 26-1 at 33). More particularly, Plaintiff
argues that the Telecom Code discriminatorily “imposes right-of-way use fees on wireless
installations located on poles, but applies no comparable fees for wireless antennas
mounted on other structures” and also “creates a tiered fee structure for linear

infrastructure, imposing differing fee amounts depending on whether a provider has 1 to
2,500, 2,500 to 12,500, or more than 12,500 feet of facilities.” (Id.).
In order to prevail on such a claim, Plaintiff must “show that [Defendants]
discriminated among providers of functionally equivalent services and that the providers
were treated unequally.” Nextel Partners, Inc. v. Town of Amherst, NY, 251 F. Supp. 2d

1187, 1193 (W.D.N.Y. 2003). The cursory argument made by Plaintiff falls far short of
demonstrating that a reasonable trier of fact would be compelled to reach this conclusion.
In particular, Plaintiff has failed to point to any evidence regarding the functional
equivalency of wireless antennas mounted on poles and wireless antennas mounted on
other structures, or of varying lengths linear infrastructure. Without such a threshold

showing by Plaintiff, it cannot demonstrate its entitlement to summary judgment on this
basis.
For all these reasons, as well as the reasons set forth at length in the Cellco Decision,
the Court finds that summary judgment in any party’s favor is not warranted as to Plaintiff’s
claims pursuant to Sections 253 and 332.

V. Dormant Commerce Clause and First Amendment Claims
Plaintiff next seeks summary judgment on its claim that the Telecom Code violates
the dormant Commerce Clause because it “prohibits entities subject to its fees from billing
or otherwise separately charging, identifying or designating those fees on any bills or
invoices to any customers or users of services or commodities furnished by the licensee.”
(Dkt. 1 at ¶ 113 (quotations and alterations omitted)). Plaintiff refers to this provision of

the Telecom Code as the “pass-through prohibition.” (Id.). Plaintiff further seeks summary
judgment on its claim that the pass-through prohibition violates the First Amendment. As
to both of these claims, Plaintiff seeks a declaratory judgment. (Dkt. 26 at 2).
The Court is not persuaded that it should reach the merits of Plaintiff’s dormant
Commerce Clause and First Amendment claims at this time. “The Declaratory Judgment

Act provides that, ‘in a case of actual controversy within its jurisdiction any court of the
United States may declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be sought.’” MedImmune,
Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (alterations omitted and quoting 28
U.S.C. § 2201(a)). “Courts have consistently interpreted the permissive language of the

Declaratory Judgment Act as a broad grant of discretion to district courts to refuse to
exercise jurisdiction over a declaratory action that they would otherwise be empowered to
hear.” Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673
F.3d 84, 104 (2d Cir. 2012) (citation and alterations omitted). The Second Circuit has
identified five factors that a district court should consider in determining whether to

exercise its discretion: (1) whether the declaratory judgment will serve a useful purpose in
clarifying or settling the involved legal issues; (2) whether a declaratory judgment would
finalize the controversy and offer relief from uncertainty; (3) whether the proposed remedy
is being used for “procedural fencing” or a “race to res judicata”; (4) whether the use of a
declaratory judgment would increase friction between sovereign legal systems or
improperly encroach on the domain of a state or foreign court; and (5) whether there is a
better or more effective remedy. Id. (citation omitted).

Here, assuming arguendo that the pass-through prohibition does, as Plaintiff
contends, violate the dormant Commerce Clause and the First Amendment, the Court finds
that it is severable from the remainder of the Telecom Code. “Severability is a question of
state law[.]” Concerned Home Care Providers, Inc. v. Cuomo, 783 F.3d 77, 88 (2d Cir.
2015). “The question is in every case whether the legislature, if partial invalidity had been

foreseen, would have wished the statute to be enforced with the valid part exscinded, or
rejected altogether.” Nat’l Advert. Co. v. Town of Niagara, 942 F.2d 145, 148 (2d Cir.
1991) (citation omitted). New York recognizes a preference for severance, which is
“particularly strong when the law contains a severability clause.” Id. However, the
presence of such a clause is not dispositive, and the preference for severability may be

overcome if “the valid and invalid provisions are so intertwined that excision of the invalid
provisions would leave a regulatory scheme that the legislature never intended.” Id.
(citation omitted).
The Telecom Code contains a severability clause. (See Dkt. 26-5 at 39 (“If any
provision of this chapter is declared invalid or unconstitutional for any reason, the

remaining provisions shall be severable and continue in full force and effect.”)). Plaintiff’s
arguments that the strong preference for severability have been overcome in this case are
wholly unpersuasive. Plaintiff speculates based on “the magnitude of the fees” and a
single, ambiguous public statement made by the City that the City would not have enacted
the Telecom Code in the absence of pass-through prohibition. (Dkt. 26-1 at 37-38). This
is a far cry from the factual circumstances that courts have found sufficient to disregard a
severability clause. See, e.g., Healthcare Distribution Alliance v. Zucker, 353 F. Supp. 3d

235, 264 (S.D.N.Y. 2018) (finding no severability where “[t]he legislative history of the
[the statute at issue] evinces a clear assessment by the legislature as to where it expected
this money to come from, and New York does not so much as hint that it ever considered
other sources than the Licensees”), vacated in part on other grounds sub. nom., Ass’n for
Accessible Medicines v. James, 974 F.3d 216 (2d Cir. 2020).

Further, the public statement that Plaintiff points to—that it would be
“unconscionable” to require City taxpayers to bear the costs of small cell deployment—
actually supports a finding of severability. It is the City’s position that the fees charged in
the Telecom Code represent a reasonable approximation of its actual costs. Accordingly,
invalidation of the Telecom Code as a whole would, in the City’s view, revert such costs

to the City and its taxpayers. (See Dkt. 12 at 3 (the City contends that the Telecom Code
remedies “artificially depressed costs of providing telecommunications services within the
City of Rochester” which were previously “at the expense of City taxpayers”)). Leaving
the Telecom Code in place without the pass-through prohibition, by contrast, preserves the
possibility that Plaintiff will determine as a business matter that it either should not pass

the fees along to its customers or that it should pass along only a portion thereof. There is
no reason for the Court to conclude, based on the record before it, that the City did not
consider the possibility that the pass-through prohibition could be invalidated and
nevertheless determined that it was preferable to charge Plaintiff and other similarly
situated fiber companies fees reflecting the City’s actual costs.
Because the pass-through prohibition is severable, a finding by the Court that the

pass-through prohibition is unconstitutional would not resolve the parties’ dispute—it
would still be necessary to conduct a trial regarding the reasonableness of the City’s fees.
And, if Plaintiff prevails on the merits with respect to its claim that the Telecom Code as a
whole violates Sections 253 and 332, its challenges to the pass-through prohibition
individually would be moot. The Court is accordingly not persuaded at this time that a

declaratory judgment regarding the pass-through prohibition would serve a useful purpose
in clarifying or settling the involved legal issue or that it would finalize the controversy or
offer relief from uncertainty. The Court further cannot find, on the instant record, that there
is not a better or more effective remedy than a declaratory judgment addressing the legality
of the pass-through prohibition alone.

The Court further finds that Defendants have not demonstrated their entitlement to
summary judgment on either Plaintiff’s dormant Commerce Clause claim or Plaintiff’s
First Amendment claim. The Court considers first the dormant Commerce Cause claim.
“The dormant Commerce Clause, a doctrine inferred from the Commerce Clause of the
United States Constitution, see U.S. Const. art. I, § 8 cl. 3, is a ‘restriction on permissible

state regulation.’” Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393, 429
(2d Cir. 2013) (quoting Hughes v. Oklahoma, 441 U.S. 322, 326 (1979)). “When a statute
‘directly controls commerce occurring wholly outside the boundaries of a State,’ it is
invalid under the dormant Commerce Clause because it ‘exceeds the inherent limits of the
enacting State’s authority.’” Id. (quoting Healy v. Beer Inst., 491 U.S. 324, 336 (1989)).
Further, “[i]n analyzing a challenged local law under the dormant Commerce

Clause” that does not directly control extraterritorial commerce, the Court “first
determine[s] whether it clearly discriminates against interstate commerce in favor of
intrastate commerce, or whether it regulates evenhandedly with only incidental effects on
interstate commerce.” Allco Fin. Ltd. v. Klee, 861 F.3d 82, 102-03 (2d Cir. 2017) (citation
omitted). If the local law at issue “clearly discriminates against interstate commerce in

favor of intrastate commerce” it “is virtually invalid per se and will survive only if it is
‘demonstrably justified by a valid factor unrelated to economic protectionism.’” Id.
(citation omitted). If, on the other hand, the local law “is nondiscriminatory, but
nonetheless adversely affects interstate commerce incidentally, [the Court] employ[s] a
deferential balancing test” pursuant to which the law “will be sustained unless the burden

imposed on interstate commerce is clearly excessive in relation to the putative local
benefits.” Id. (quotation and alterations omitted).
Defendants’ argument that they are entitled to summary judgment on the dormant
Commerce Clause claim is entirely unpersuasive. Specifically, Defendants contend that
“[t]he Telecom Code’s . . . treats plaintiff the same for both in-state and out-of-state

purposes: in either case, plaintiff must pay the City’s telecom fees itself, not pass them on
to consumers whether in-state or out-of-state.” (Dkt. 30-8 at 24-25). This argument misses
the point. It is precisely because the Telecom Code purports, on its face, to govern how
Plaintiff may conduct itself with respect to out-of-state consumers that the dormant
Commerce Clause is implicated. Because Defendants have not meaningfully addressed
the appropriate standard, they have not demonstrated their entitlement to summary
judgment.

Similarly, Defendants’ papers fall short of demonstrating their entitlement to
summary judgment on Plaintiff’s First Amendment claim. Defendants’ argument in this
regard depends on their contention that the pass-through prohibition regulates conduct and
not speech. (See Dkt. 30-8 at 23-24). However, the case that Defendants rely on for this
argument, BellSouth Telecomms., Inc. v. Farris, 542 F.3d 499 (6th Cir. 2008), actually held

to the contrary. See id. at 506 (“[T]his provision regulates speech, not conduct, as it
prohibits providers from ‘stating’ the tax on the bill.” (original alteration omitted)). The
pass-through prohibition expressly forbids Plaintiff from “identifying” or “designating” the
relevant fees on any bill, and therefore regulates speech in addition to regulating conduct.
Defendants’ argument thus fails, and they are not entitled to summary judgment.2

Accordingly, the Court declines to enter summary judgment in favor of any party on
Plaintiff’s dormant Commerce Clause or First Amendment claims.

2 Defendants also make a one-sentence, unelaborated argument that “Insofar as § 106-
15(G) of the Telecom Code may be construed as regulating speech in violation of the First
Amendment, the introductory phrase of the provision—‘[e]xcept as otherwise required by
law’—preserves the licensee’s First Amendment speech rights.” (Dkt. 30-8 at 24).
Defendants have cited no authority for the proposition that this introductory clause is
sufficient to save an otherwise unconstitutional prohibition on speech and have not come
close to showing that summary judgment is warranted on this basis.
VI. Takings Clause Claim
Plaintiff has asserted a claim that the fees imposed by the Telecom Code constitute
a regulatory taking in violation of the Takings Clause of the Fifth Amendment, U.S. Const.

Amend. V. (See Dkt. 1 at ¶¶ 175-80); see also Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1015 (1992) (explaining circumstances in which regulatory takings may occur).
Plaintiff’s motion papers identify this claim as one on which it sought summary judgment
(see Dkt. 26-1 at 7), but Plaintiff offers no argument thereon. Accordingly, Plaintiff has
not demonstrated an entitlement to summary judgment as to this claim.

Defendants have sought summary judgment in their favor on this claim, contending
that “plaintiff fails to identify any ‘private property’ that the City has ‘taken for public use
without just compensation[.]’” (Dkt. 30-8 at 25). However, in opposition to Defendants’
motion, Plaintiff has explained that the private property at issue is the “extensive fiber
network” it deployed in the City prior to adoption of the Telecom Code, and as to which it

claims to have been denied all economically beneficial or productive use. (Dkt. 33 at 33-
34). Defendants have not addressed this issue in their reply, and the Court cannot find, on
the scant record and arguments before it, that Defendants are entitled to summary judgment
on Plaintiff’s Takings Clause claim.
VII. CPLR 7803 Claims

The Court turns finally to Plaintiff’s claims brought under CPLR 7803—its third
and fourth causes of action. Plaintiff did not seek summary judgment on these claims.
Defendants seek summary judgment thereon in their favor, arguing that CPLR 7803 “is not
a proper vehicle to challenge the validity of legislation.” (Dkt. 30-8 at 24). Plaintiff argues
in opposition that its CPLR 7803 claims “do not challenge the Code itself, but rather the
conduct of City officials implementing the Code.” (Dkt. 33 at 34).
As a threshold matter, although it has not been raised by the parties, the Court notes

that “it is generally inappropriate for a federal district court to exercise supplemental
jurisdiction over an Article 78 claim.”3 Burdick v. Bath Cent. Sch. Dist., No. 6:19-CV-
06426 EAW, 2020 WL 1435112, at *8 (W.D.N.Y. Mar. 24, 2020); see also Maniscalco v.
New York City Dep’t of Educ., 563 F. Supp. 3d 33, 42 (E.D.N.Y. 2021) (“Federal courts
have routinely declined to exercise supplemental jurisdiction over Article 78 claims

pursuant to 28 U.S.C. § 1367(c), citing the special solicitude afforded to this purely state
procedural remedy.” (quotation omitted)), aff’d, No. 21-2343, 2021 WL 4814767 (2d Cir.
Oct. 15, 2021), cert. denied, 142 S. Ct. 1668, 212 L. Ed. 2d 578 (2022); Bartolini v. Cassels,
No. 17-CV-5671 (NSR)(PED), 2018 WL 3023161, at *6 (S.D.N.Y. June 18, 2018)
(“District Courts in this Circuit have consistently declined to exercise supplemental

jurisdiction over Article 78 claims.”) (collecting cases), aff’d, 801 F. App’x 10 (2d Cir.
2020); Nitti v. Cnty. of Tioga, No. 3:14-CV-0954 (GTS/DEP), 2015 WL 5708637, at *9
(N.D.N.Y. Sept. 28, 2015) (“Courts have found that compelling reasons to decline to
exercise supplemental jurisdiction exist in the very nature of an Article 78 proceeding.”
(quotations and alteration omitted)); E. End Eruv Ass’n, Inc. v. Town of Southampton, No.

CV 13-4810(AKT), 2014 WL 4826226, at *18 (E.D.N.Y. Sept. 24, 2014) (“The Court
agrees with the essentially unanimous position of the New York federal district courts that

3 CPLR 7803 is within Article 78 of the CPLR.
the very nature of an Article 78 proceeding presents . . . compelling reasons” to decline
exercising supplemental jurisdiction over a plaintiff’s Article 78 claim (internal quotation
and citations omitted)). Indeed, it is an open question whether a district court even has the

authority to exercise such jurisdiction. See Carver v. Nassau Cnty. Interim Fin. Auth., 730
F.3d 150, 155 (2d Cir. 2013) (“We need not decide . . . whether Article 78 can, on its own,
deprive a federal court of jurisdiction over claims brought under that provision, as some
district court cases have held[.]”); Beckwith v. Erie Cnty. Water Auth., 413 F. Supp. 2d 214,
226-27 (W.D.N.Y. 2006) (“[T]his court has no original or supplemental subject matter

jurisdiction over [an] Article 78 proceeding as neither federal nor New York state law
empower the federal courts to consider such claims, and, under New York law, authority
to grant relief pursuant to an Article 78 proceeding is exclusively vested in New York
Supreme Court.”).
In light of these serious jurisdictional questions, the Court denies Defendants’

motion for summary judgment on Plaintiff’s CPLR 7803 claims without prejudice.
Instead, within 30 days of entry of this Decision and Order, the parties shall submit to the
Court written memoranda setting forth their respective positions on whether it is
appropriate for the Court to exercise jurisdiction over Plaintiff’s CPLR 7803 claims.
CONCLUSION

For the foregoing reasons, as well as the reasons set forth in the Cellco Decision,
the Court finds that neither Plaintiff nor Defendants are entitled to summary judgment. The
parties’ respective motions for summary judgment (Dkt. 26; Dkt. 30) are accordingly
denied. Within 30 days of entry of this Decision and Order, the parties shall submit written
memoranda of no more than 20 pages each setting forth their positions on whether this
Court can or should exercise jurisdiction over Plaintiff’s CPLR 7803 claims.
SO ORDERED.

______________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court

Dated: August 22, 2022
Rochester, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365243. Public record. Not legal advice.