Beach Tv Properties Inc. v. Soloman ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE ATLANTA CHANNEL, INC., :
:
Plaintiff, : Civil Action No.: 15-1823 (RC)
:
v. : Re Document Nos.: 143, 159
:
HENRY A. SOLOMON, et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING DEFENDANT HENRY SOLOMON’S MOTION FOR SUMMARY JUDGMENT; DENYING
PLAINTIFF’S MOTION FOR RULE 11 SANCTIONS
I. INTRODUCTION
Over 20 years ago, Defendant Henry Solomon submitted a form to the Federal
Communications Commission (“FCC” or “Commission”) on behalf of his client, the Atlanta
Channel, Inc. (“ACI”). Timely submission of this material was required to establish ACI’s
eligibility to apply for a special license that would have given the broadcaster preference on the
airwaves. But the form was incomplete: none of the boxes indicating eligibility were checked.
As a result, the FCC deemed ACI ineligible to apply for a Low-Power-Television (“LPTV”)
Class A license pursuant to the Consumer Broadcasters Protection Act (“CBPA”), 47 U.S.C.
§ 336(f), and associated FCC regulations, 47 C.F.R. Part 73. Plaintiff thereafter brought
malpractice claims against Mr. Solomon, alleging, as relevant here, that his actions are to blame
for ACI’s loss of this valuable licensing opportunity. 1 Second Am. Compl. ¶¶ 26–35, ECF No.
1
This Court previously permitted Plaintiff to amend its complaint to include two new
claims against Mr. Solomon’s colleague, Melodie Virtue, and their law firm, Garvey Schubert
Barer. See Beach TV Properties Inc. v. Solomon (Beach TV II), 254 F. Supp. 3d 118 (2017).
Because the pending motions involve only Defendant Solomon, the Court does not discuss these
claims or Defendants here.
69 (“The FCC would have granted a Class A License . . . but for the ‘material deficiency’ in the
ACI Statement prepared, reviewed[,] and filed by Mr. Solomon.” Id. ¶ 35.); id. ¶ 74 (“Mr.
Solomon committed legal malpractice in the representation of ACI by failing to exercise due and
proper care in the preparation and filing of the ACI statement.”).
Defendant Solomon now seeks summary judgment on the grounds that, as a matter of
law, ACI was never actually eligible for a Class A license. Def. Solomon’s Motion for Summ. J.
Based on the Lack of Eligibility of WTHC-LD for Class A Status (“Def.’s Mot.”) 1–2, ECF No.
143. 2 According to Defendant, because ACI did not in 1999, and has not ever, satisfied the
statutory and regulatory requirements for Class A status, Plaintiff cannot establish that Mr.
Solomon’s omission of material on the eligibility form led ACI to sustain a legally cognizable
injury. Def. Solomon’s Brief in Support of Motion for Summ. J. Based on the Lack of Eligibility
of WTHC-LD for Class A Status (“Def.’s Br.”) 4, ECF No. 143. 3 Mr. Solomon thus moves for
summary judgment to dismiss the claim against him. Plaintiff, unsurprisingly, characterizes the
underlying law and its application to ACI quite differently—so differently that ACI not only
opposes Defendant’s motion for summary judgment, ECF No. 153, but also moves for Rule 11
sanctions against Solomon’s counsel for making what it characterizes as a frivolous legal
argument, ECF No. 159. For the reasons set forth below, the Court agrees with Plaintiff that
summary judgment is inappropriate but does not find Rule 11 sanctions to be in order here.
Accordingly, the Court denies both motions.
2
WTHC-LD (formerly WTHC-LP) is ACI’s call sign. Second Am. Comp. ¶ 15.
3
This document and Defendant’s motion were filed together, see ECF 143, but are
separately paginated. The Court cites to each document using the original pagination.
2
II. BACKGROUND
Because the parties dispute the manner in which the underlying statutory and regulatory
structure applies to the facts presented, the Court will begin with an overview of applicable
controlling law and then briefly recount the procedural and factual history of this case.
A. Statutory and Regulatory Background
1. The Consumer Broadcasters Protection Act of 1999
Congress enacted the CBPA, 47 U.S.C. § 336(f), on November 29, 1999, to ensure
community access to locally-originated programming. See 145 Cong. Rec. S29977 (Nov. 17,
1999) (stating that Act aims to “ensure that many communities across the nation will continue to
have access to free, over-the-air low-power television (LPTV) stations, even as full-service
television stations” convert to digital format). In furtherance of this objective, the CBPA
directed the FCC to create a new category of “[C]lass A television license.” 47 U.S.C.
§ 336(f)(1)(A). The CBPA provides that the FCC should award a Class A license “subject to the
same license terms and renewal standards as the licenses for full-power television stations,”
unless otherwise provided, id. at § 336(f)(1)(A)(i), and should accord “each such [C]lass A
licensee . . . primary status as a television broadcaster” so long as the licensee satisfies “the
requirements for a qualifying low-power station,” id. at § 336(f)(1)(A)(ii). The statute specifies
the relevant qualifying requirements:
[A] station is a qualifying low-power television station 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
3
(ii) from and after the date of its application for a [C]lass A license, the
station is in compliance with the Commission’s operating rules for full-
power television stations[.]
47 U.S.C. § 336(f)(2).
In addition, the CBPA established a time-limited, two-step process for local broadcasters
to use to apply for a Class A license. First, “within 60 days after November 29, 1999, licensees
intending to seek [C]lass A designation” were to submit to the FCC a “certification of eligibility
based on [the subsection’s] qualification requirements.” Id. § 336(f)(1)(B). Unless the statement
of eligibility had a “material deficiency,” the CBPA directed the FCC to “grant certification of
eligibility to apply for [C]lass A status.” 4 Id. Second, eligible applicants were permitted to
“submit an application for [C]lass A designation.” Id. § 336(f)(1)(C). The CBPA required the
FCC to “prescribe regulations to establish a [C]lass A television license” for eligible licensees
within 120 days of November 29, 1999. Id. § 336(f)(1)(A). Summing up, then, the CBPA
established qualifying requirements and the process that licensees needed to follow to establish
eligibility for a Class A license and delegated to the FCC the authority to, within the specified
time frame, promulgate regulations concerning the details of the Class A license application
process. The Court next describes the relevant FCC regulations.
2. FCC Implementation of the CBPA
As required by the CBPA, the FCC promulgated implementing regulations to establish a
Class A television license. See FCC, Report and Order, In the Matter of Establishment of a
Class A Television Service, MM Docket No. 00-10, FCC 00-115, 15 FCC Rcd. 6355 (Apr. 4,
2000) (“2000 Report and Order”). The FCC stated that the implementing regulations in its 2000
Report and Order were the “final regulations” described in the CBPA, such that licensees were
4
The statute refers to a “certification of eligibility,” whereas the parties refer to a
“statement of eligibility.” The Court considers the two terms to be synonymous.
4
permitted to file Class A applications within 30 days of the date that the regulations took effect.
Id. at 6360. The regulations articulated in the 2000 Report and Order took effect on June 9,
2000. Id. at 8985.
In the 2000 Report and Order, the Commission both set forth implementing regulations
and discussed the interaction between the regulations and the CBPA. The FCC first reiterated
the “several steps” required for an LPTV station to be eligible for a Class A license: (1) “it must
have filed a certification of eligibility within 60 days of the enactment of the CBPA” (i.e. by
January 28, 2000); (2) the FCC must approve the certification of eligibility; (3) “it must file an
application for a Class A license . . . within 6 months from the effective date of the Class A
rules” (i.e. within 6 months of June 9, 2000); and (4) the FCC must grant that license. Id. at
6361. The Commission also established that it would apply to applicants and licensees “all” of
the controlling Part 73 regulations that applied to full-service stations “except for those that
cannot apply for technical or other reasons.” Id. at 6365.
The FCC next addressed certain terms not defined by the CBPA itself. As relevant here,
the FCC discussed what “market area” it would consider in determining whether a station had
complied with the local production requirements to qualify for a Class A license. See 47 U.S.C.
§ 336(f)(2)(A)(i)(II) (indicating that qualifying for a Class A license requires a low-power
television station to broadcast a minimum amount of “programming that was produced” in that
station’s market area). The Commission defined market area “to encompass the area within the
predicted Grade B contour,” or, for “a group of commonly controlled stations,” as “the area
within the predicted Grade B contours” of any of those stations. 2000 Report and Order at 6364.
The FCC further provided that it would “require Class A applicants and licensees to
maintain a main studio . . . within the station’s Grade B contour,” consistent with the local access
5
objectives of the statute. 5 Id. at 6366 (discussing “main studio rule”). However, the
Commission created a limited exception by “grandfather[ing] all main studios now in existence
and operated by LPTV stations . . . for purposes of [the] Class A main studio rule.” Id. The FCC
also made clear that it would “consider programming produced at the main studio of such
grandfathered Class A stations to be locally produced programming” for purposes of compliance
with all applicable statutes and regulations. Id. at 6365. These provisions ensured that there was
no conflict between the locally produced programming requirement, discussed above, and the
main studio rule. Id. The final main studio rule itself thus provided, “[e]ach Class A television
station shall maintain a main studio at the site used by the station as of November 29, 1999, or a
location within the station’s Grade B contour.” 47 C.F.R. § 73.1125 (2000). In addition, the
FCC stated that, “[i]n order to qualify as a ‘main studio,’ the location must be [1] equipped with
appropriate equipment capable of originating programming at any time” and [2] “staffed by at
least one staff-level employee at all times during regular business hours.” 2000 Report and
Order at 6444, App’x D, ¶ F (emphasis removed).
In 2001, the FCC reconsidered certain of these rules, including, as relevant here, the
definition of “market area” and its relationship to the main studio rule. FCC, Memorandum
Opinion and Order on Reconsideration, In the Matter of Establishment of a Class A Television
Service, MM Docket No. 00-10, FCC 01-123, 16 FCC Rcd. 8244, 8252–53 (Apr. 13, 2001)
(“2001 Reconsideration”). Discussing the “local programming” requirement, the Commission
clarified that “programming must be produced within the same ‘market area’ in which it is
broadcast” in order to “qualify as ‘local programming’ under the CBPA.” Id. at 8253. The
5
Separate FCC regulations define the Grade B contour, which depends on the signal
strength of the LPTV station. See 2000 Report & Order at 6366 n.52 (discussing definition of
Grade B field strength values in 47 C.F.R. § 73.683(a)).
6
amended regulation thus defined “locally produced programming” as “programming: (1)
produced within the predicted Grade B contour of the station broadcasting the program or within
the contiguous predicted Grade B contours of any of the stations in a commonly owned group; or
(2) programming produced at the station’s main studio.” 47 C.F.R § 73.6000 (2001).
In the 2001 Reconsideration, the FCC retained its previous regulatory provisions
concerning main studios. First, it reaffirmed the “grandfather” provision with respect to the
location of a main studio. 2001 Reconsideration at 8252 n.34 (“If a Class A station used its main
studio on or before the date of enactment of the CBPA (November 29, 1999), that studio is
‘grandfathered.’ The location requirements for main studios that were established in the [2000]
Report and Order and modified in this Order do not apply to these grandfathered studios.”).
Accordingly, under the updated regulations, a “grandfathered” main studio was again not
required to be “located within a [Class A station’s] predicted Grade B contour” to comply with
the main studio rule. Id. at 8256. The FCC also reiterated the managerial and staffing
requirements that would apply at main studios, stating that, in keeping with “CBPA’s intent that
Class A stations comply with all of the requirements of full-power TV stations,” a station’s main
studio “must maintain, at a minimum, full-time managerial and full-time staff personnel.” Id. at
8255. Satisfying this requirement demanded the full-time or equivalent part-time presence of
two individuals during normal business hours. Id.
These provisions remained substantively unchanged until 2017, when the FCC repealed
its “main studio rule.” FCC, Elimination of Main Studio Rule, MC Docket No. 17-106, FCC 17-
137, 82 FR 57876-01 (Dec. 8, 2017) (“2017 Order”). Finding that technological innovations had
“eliminated the need for a local main studio,” the FCC determined that the “costs of complying
with the main studio rule substantially outweigh any benefits.” Id. at 57877. Thus, the
7
Commission amended 47 C.F.R Parts 1 and 73 to delete § 73.6000(3), which had previously—as
the Court just discussed—permitted a station to consider “[p]rogramming produced at the
station’s main studio” to be “locally produced programming.” 6 Id. at 57881. Thus, all content
would need to be produced at stations located within the specified Grade B contour to qualify.
See id. An exception remained, though: as it had in 2001, the FCC retained the grandfathering
provision, stating, “[f]or those Class A stations currently operating at grandfathered main studios
that are outside of the locations described in § 73.600(1)–(2) of our rules, we will continue to
consider programming produced at that previously grandfathered main studio to be locally
produced.” Id. at 57881 n.33. Accordingly, a station that operated a main studio at a location
outside of the applicable Grade B contour as of the November 29, 1999, date of enactment of the
CBPA retained its grandfathered status with regard to locally produced content.
B. Factual Background and Procedural History
Because this Court has addressed this suit in six prior opinions, it assumes familiarity
with its previous rulings and limits is discussion of the factual and procedural history to the
points that are most relevant to the pending motions. 7
6
With the deletion of this provision, the FCC also eliminated the previous requirement
that the main studio be capable of program origination. 2017 Order at 57878. The Commission
retained, however, rules requiring each Class A station to “maintain a local telephone number in
its community of license or a toll-free number.” Id. (quoting 47 C.F.R. § 73.1125). The FCC
also added certain provisions to ensure ongoing public access to a broadcast station’s public file,
even after elimination of the main studio requirement. See id. at 57879–80.
7
On a motion for summary judgment, the Court accepts the non-movant’s evidence—
here, Plaintiff—as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). Unless otherwise
indicated, the reporting of the facts here and throughout the Court’s opinion draws from the
material facts that Plaintiff has indicated are not in dispute. See generally, e.g., Second Am.
Compl.; Pl.’s Statement of Material Facts Not in Dispute (“Pl.’s SMF”), ECF No. 153-2.
8
This suit centers on ACI’s LPTV station in Atlanta, Georgia, which operates with call
sign WTHC-LD. Second Am. Compl. ¶ 15. This station is one of seven LPTV stations owned
by Jud Colley and his wife, Toni Davis, through three entities (ACI, Beach TV Properties, Inc.
(“Beach TV”), and Beach TV of South Carolina, Inc.). Pl.’s SMF ¶ 2 (citing Sept. 27, 2019
Declaration of Byron “Jud” Colley (“2019 Colley Decl.”) ¶ 2, ECF No. 153-3); see also Pl.’s
Mem. Opp’n to Def. Solomon’s Mot. Summ. J. (“Pl.’s Opp’n”) 2–3, ECF No. 153. All of these
LPTV stations are part of “The Destination Network.” Pl.’s SMF ¶ 6, which “creates
programming targeted to tourists who stay at hotels in each of the communities served by the
[LPTV stations],” id. ¶ 7.
On December 29, 1999, attorney Harry Solomon submitted forms to the FCC seeking to
establish that his client’s seven LPTV stations were eligible to apply for a Class A license
pursuant to the CBPA. 8 See Beach TV Props., Inc. v. Solomon (Beach TV I), No. 15-cv-1823,
2016 WL 6068806 at *2 (D.D.C. Oct. 14, 2016). But the form that Mr. Solomon submitted on
behalf of ACI for WTHC-LD was missing information concerning the station’s substantive
eligibility. Id. On June 9, 2000, the Mass Media Bureau of the FCC dismissed ACI’s statement
of eligibility for WTHC-LD because it contained a “material deficiency.” Id.
ACI, unwilling to concede defeat, pursued further administrative review. First, Mr.
Solomon, continuing to act as ACI’s legal counsel, filed a petition for reconsideration with the
FCC. This petition was unavailing; in November 2000, the Mass Media Bureau denied the
8
Mr. Solomon submitted forms on behalf of both ACI and Beach TV Properties, Inc.
See Beach TV Props., Inc. v. Solomon (Beach TV I), No. 15-cv-1823, 2016 WL 6068806 at *2
(D.D.C. Oct. 14, 2016). Plaintiff’s pleadings indicate that Beach TV and ACI “are and were at
all times relevant to this action affiliates with 100% common ownership.” Second Am. Compl. ¶
41. Beach TV initially pursued claims against Mr. Solomon alongside ACI, but this Court
dismissed all claims made by Beach TV for lack of standing. See generally Beach TV I, 2016
WL 6068806.
9
petition on the grounds that the original statement of eligibility was “patently defective.” Id.
(internal quotation omitted). ACI then sought review by the full FCC. Over a decade later, the
FCC upheld the Mass Media Bureau’s determination as reasonable and rejected ACI’s
application for review. Id.; see also Beach TV Props., Inc. v. Solomon (Beach TV III), 306 F.
Supp. 3d 70, 81 (D.D.C. 2018). After the D.C. Circuit affirmed this denial of the petition for
review in September 2015, Plaintiff filed suit against Mr. Solomon in this Court on October 26,
2015. Beach TV III, 306 F. Supp. 3d at 81.
ACI’s malpractice suit against Mr. Solomon requires linking his action in 1999 to
WTHC-LD’s failure to acquire Class A status. More specifically, ACI’s claim turns on the
premise that, but for Mr. Solomon’s submission of an incomplete form, WTHC-LD would have
received a Class A license. Second Am. Compl. ¶ 35 (“The FCC would have granted a Class A
license for the WTHC-LD License pursuant to the CBPA but for the ‘material deficiency’ in the
ACI Statement [of Eligibility] prepared, reviewed[,] and filed by Mr. Solomon.”); see Beach TV
III, 306 F. Supp. 3d at 84 (“ACI suffered actual injury as a result of Mr. Solomon’s alleged
negligence on June 9, 2000, when the FCC dismissed ACI’s Statement of Eligibility, thereby
precluding it from applying for a Class A license.”). In the pending motion for summary
judgment, Mr. Solomon challenges this premise and contends that ACI was never eligible for a
Class A license because ACI cannot satisfy the controlling locally-produced content
requirements pursuant to the CBPA and associated FCC regulations. 9 Def.’s Mot. 1–2. ACI has
moved for Rule 11 sanctions concerning the legal arguments presented in Defendant’s motion.
For the forthcoming reasons, the Court finds Defendant’s arguments unpersuasive; however,
9
As Defendant notes, his answer to Plaintiff’s second amended complaint challenged this
conclusion and “demand[ed] strict proof” that ACI “met the Qualifications Criteria and that the
WTHC-LD License qualified for a Class A license.” Answer of Def. Solomon to Second Am.
Compl. (“Answer”) ¶ 22, ECF No. 70; see Def.’s Br. 1 (citing Answer ¶¶ 21–22, 27).
10
because the Court does not find them frivolous in a manner that warrants the Rule 11 sanctions
that Plaintiff pursues, both parties’ motions are denied.
III. LEGAL STANDARD
Summary judgment is proper when “the movant shows 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). A “material” fact is one capable of affecting the substantive outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is
enough evidence for a reasonable finder of fact to decide in favor of the non-movant. See Scott
v. Harris, 550 U.S. 372, 380 (2007).
Summary judgment endeavors to streamline litigation by disposing of factually
unsupported claims or defenses and thereby determining whether trial is genuinely necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial burden
of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must
“eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475
F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the
light most favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless,
conclusory assertions offered 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).
11
IV. ANALYSIS
The Court will first address Defendant’s motion for summary judgment before
considering Plaintiff’s motion for Rule 11 sanctions. For the forthcoming reasons, the Court
denies both motions.
A. Defendant Solomon’s Motion for Summary Judgment
Defendant Solomon urges summary judgment on the grounds that ACI’s station, WTHC-
LD, was not and has not ever been eligible for Class A status under the terms established by the
CBPA and associated FCC regulations. Def.’s Br. 6. Defendant’s opening brief emphasizes
WTHC-LD’s alleged failure to comply with the CBPA’s locally-produced programming
requirement as well as with the FCC’s main studio rule. Id. at 7–8. Mr. Solomon argues that,
because ACI was not eligible for Class A status at the time he filed the defective form in 1999, it
“sustained no legally cognizable injury due to the FCC’s denial of [ACI’s] Statement of
Eligibility,” leaving Plaintiff without a cause of action for legal malpractice against him. Id. at
11.
In support of this contention, Defendant first challenges the station’s compliance with the
locally produced programming requirement articulated in the CBPA and reiterated by the FCC.
Mr. Solomon points to the Rule 30(b)(6) declaration by Plaintiff’s designated witness, Byron
“Jud” Colley, Jr., wherein Mr. Colley stated that ACI does not and has not ever created its own
programming, but instead relies on the Beach TV Cable Company to produce its programming
content. 10 Id. at 3 (citing Def.’s Statement of Material Facts Not in Genuine Dispute (“Def’s
10
This entity is distinct from Beach TV Properties, Inc., the former co-plaintiff in this
suit. See 30(b)(6) Deposition of Byron Judson Colley, Jr. (“Colley Depo.”) 19–20, ECF No.
143-1 (stating that Beach TV holds the license for certain stations, whereas Beach TV Cable
Company, Inc. “runs TV stations in Panama City, Destin, and Key West” and serves as the
“production company” for ACI’s TV stations). Mr. Colley and his wife are the sole shareholders
12
SMF”) ¶ 3, ECF No. 143 (citing Def.’s Mot. Ex. 1, Colley Tr., ECF No. 143-1)). According to
Defendant, because Beach TV Cable Company produces its content in Panama City, Florida, and
WTHC-LD is a station in Atlanta, Georgia, id., WTHC-LD did not carry “local programming
produced within the market area served” by the station in the manner required to establish
eligibility for Class A status, id. at 6–7 (quoting 47 U.S.C. § 336(f)(2)(A)(i)(II)). In other words,
because ACI’s LPTV station WTHC-LD “generally speaking served the Atlanta market” and did
not operate as “part of a group of stations serving the same market area,” and because it relied on
an entity in another state, outside of its Grade B contour, to produce all programming, Mr.
Solomon maintains that ACI could not possibly have met the statutory requirements for Class A
eligibility. Id. at 7; see id. at 11–12.
Next, Defendant argues that WTHC-LD cannot establish that it would have been eligible
for a Class A license because it did not satisfy the FCC’s main studio rule. Id. at 8. Mr.
Solomon notes that FCC regulations mandate main studios to (1) retain “at least two
employees . . . on a full-time basis: one management-level employee and one staff member” and
(2) maintain “production and transmission facilities that would allow stations to originate
programming” from that location. Id. (first quoting, then citing, 2017 Order at 8128). Defendant
asserts that ACI fails to meet this requirement because ACI identified only a single contract
employee and indicated that it does not employ camera crews or operators, and, accordingly,
cannot satisfy the FCC’s staffing requirements under the main studio rule. Id. at 8–9.
Plaintiff contends that Mr. Solomon’s motion for summary judgment fails to account for
all of the relevant facts concerning ACI’s programming production and main studio location. 11
for Beach TV Cable. Id. at 114:4–10.
11
Plaintiff also argues that the expert witness statement that Defendant provides in
support of his motion for summary judgment contains only inadmissible legal conclusions and
13
ACI explains that Mr. Solomon overlooks a critical point: applying the FCC’s grandfathering
provisions, the Panama City studio is grandfathered as ACI’s main studio. Pl.’s Opp’n 5.
According to Plaintiff, because ACI’s Panama City studio provided locally produced
programming to WTHC-LD in Atlanta as of November 29, 1999, ACI has established that
WTHC-LD did in fact satisfy what the CBPA and associated regulations demand to establish
Class A eligibility. See id. at 5–9. In addition, Plaintiff emphasizes that this Panama City studio
“had the equipment capable of originating programming and was staffed by the requisite two
people,” such that it met the regulatory requirements for a “main studio.” Id. at 5.
In response, Defendant strongly contests the characterization of the Panama City studio
as WTHC-LD’s main studio. He raises several arguments, but just one suffices to resolve the
instant motion: Panama City cannot be WTHC’s main studio because Plaintiff has, “in legal
pleadings before the FCC in the review of the FCC’s dismissal of WTHC’s Statement of
Eligibility, clearly and unmistakably identified WTHC’s main studio address as 236 Peachtree
Street NE” in Atlanta, Georgia. Def. Henry A. Solomon’s Reply in Further Supp. of Mot.
Summ. J. (“Def.’s Reply”) 1, ECF No. 162. Mr. Solomon contends that, because WTHC “has
never moved from that location,” and because Mr. Colley attested that the Peachtree location was
WTHC’s main studio address in a sworn statement provided on December 7, 2012, and
acknowledged under oath in 2017, ACI cannot now claim that Panama City is WTHC’s main
studio to “bootstrap” its way into CBPA compliance. Id. at 3–4, 16–17. Defendant further
argues that, in light of ACI’s 2012 statement, the sham affidavit rule bars the Court from
should be disregarded or, alternatively, if it is considered, that the Court should also consider
Plaintiff’s supplemental expert witness statements. Pl.’s Opp’n 1–2. Because, as set forth
below, the Court concludes that there are genuine questions of material fact that render summary
judgment inapposite without considering these materials, it reserves judgment concerning the
admissibility of these statements.
14
considering Plaintiff’s 2019 attestation that “ACI’s main studio was, at all relevant times,
properly located in Panama City, FL,” id. at 9 (quoting September 29, 2019 Declaration of Jud
Colley (“Sept. 2019 Colley Decl.”) ¶ 1, ECF No. 153-3); see id. at 9–11. Plaintiff rebuts these
contentions, emphasizing that the 2012 and 2019 statements were in distinct contexts and that,
when Panama City is construed as WTHC’s main station, WTHC satisfies the Class A eligibility
requirements. 12 See Pl.’s Sur-Response in Opp’n to Mot. of Def. Henry A. Solomon for Summ.
J. (“Pl.’s Sur-Response”) 1–3, ECF No. 167. For the following reasons, ACI has the better
argument.
Because it determines what materials the Court may consider in resolving Mr. Solomon’s
motion for summary judgment, the Court begins with Defendant’s contention that Plaintiff’s
2019 representations concerning WTHC’s main studio location are inadmissible. See Def.’s
Reply 7–8. The “sham affidavit” rule, as Defendant notes, “precludes a party from creating an
issue of material fact by contradicting prior sworn testimony unless the shifting party can offer
persuasive reasons for believing the supposed correction is more accurate.” Id. (quoting Galvin
v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007)). “If the supplemental affidavit does
not contradict but instead clarifies the prior sworn statement, then it is usually considered
12
In passing, Plaintiff also seems to argue more directly that content was actually
“produced” in Atlanta. See Pl.’s Sur-Response 3 & n.5 (asserting “the indisputable truth that
ACI’s programming was about Atlanta subject matter, filmed in Atlanta, edited at the Panama
City studio,” id. at 3, and suggesting that Wikipedia definition of “production” establishes that
“all of the programming broadcast by ACI was ‘produced’ in Atlanta” because it was filmed
there, id. at 3 n.5). The Court will not rest its decision on a Wikipedia definition of production
included in a footnote of Plaintiff’s Sur-Response. Nor need it opine on this issue: because, as
set forth below, the Court finds a material dispute of genuine fact concerning whether the
Panama City studio qualifies as a main studio, and because Plaintiff does not appear to argue that
the Peachtree location alone would suffice as a main studio for CBPA compliance purposes, the
Court resolves the pending motion on these other grounds.
15
admissible.” Richardson v. Petasis, 160 F. Supp. 3d 88, 104 n.16 (D.D.C. 2015) (quoting
Galvin, 488 F.3d at 1030).
Here, Defendant maintains that Mr. Colley’s 2019 statement that WTHC’s main studio is
located in Panama City is inadmissible because it not only conflicts with the material in the 2012
legal proceedings with the FCC, but also conflicts with his 2017 testimony as ACI’s Rule
30(b)(6) designee. See Def.’s Reply 8–9. On Mr. Solomon’s account, the 2019 statement is in
direct conflict with the sworn 2012 testimony, rendering it a sham affidavit. But Defendant’s
read of the two sets of statements glosses over the distinct settings in which the two statements
were made. As Plaintiff points out, the two statements were made in different contexts. See
Pl.’s Sur-Response 12. ACI emphasizes that Mr. Colley made his 2012 statement to the FCC in
the context of ACI’s petition for reconsideration of the FCC’s denial of WTHC’s statement of
eligibility. See Pet. for Reconsideration 28–29, Dec. 7, 2012 Colley Decl., ECF No. 162-2. 13
Therein, ACI identified the Peachtree location “as a place where ACI conducted its operations
like a full power television station.” Pl.’s Sur-Response 3. In contrast, the 2019 declaration by
Mr. Colley “identified the Panama City Studio as the place where ACI edited its ‘locally
produced programming’ and otherwise complied with the requirements for a Class A License.”
Id. Accordingly, “[t]he two statements are not inconsistent because a full power television ‘main
studio’ at the Peach Tree Studio is not the same thing as a Class A station ‘main studio’ at the
Panama City Studio.” Id.
A close read of the materials reveals that Plaintiff has the better argument. At a bare
minimum, ACI’s submissions concerning the two statements create a genuine dispute of material
fact regarding the different contexts in which the statements were submitted. The 2012 petition
13
The Court cites to this document, which Defendant attached to his reply brief, using the
ECF page numbers.
16
to the FCC urged the Commission to “reverse its prior ruling and allow WTHC to file a Class A
license application.” Pet. for Reconsideration 26. This petition specifically sought to address the
FCC’s finding that “ACI did not state it had met the continuing eligibility requirements for Class
A stations,” including “compliance with the Commission’s operating rules for full-power
stations.” Id. at 12–13 (emphasis in original) (quoting FCC, Memorandum Opinion and Order,
FCC 12-135 at 2 n.8 (Nov. 9, 2012) (“2012 FCC Mem. Op.”), ECF No. 162-6). Therein, ACI
argued that the FCC had misconstrued its own regulations by conflating step one of the CBPA’s
process (submission of the statement of eligibility) with step two of the process (application for a
Class A license). See id. Thus, the main studio address offered in this context was meant to
advance a particular legal argument and respond to the FCC’s prior finding that ACI had not
indicated a “main studio of record,” id. at 12, for purposes of establishing initial Class A license
eligibility under the CBPA. As Plaintiff explains, the 2012 Colley Declaration “was drafted by
Defendant Melodie Virtue (‘Virtue’) and communicated to the FCC that ACI had been
‘operating . . . like a full power television station.’” 14 Pl.’s Sur-Response 4 (citing 2012 Colley
Decl. ¶¶ 6–8). ACI further notes that the requirements for a full-power television station are
different from the requirements for a Class A license because “a full power television station
does not have an obligation to broadcast ‘locally produced programming,’” whereas a Class A
licensee does. Id. at 4 & n.7 (distinguishing between § 336(f)(2)(A)(ii) requirement that Class A
licensee must comply with rules for full power TV stations and § 336(f)(2)(A)(i)(II)’s separate,
14
Plaintiff alleges that Mr. Solomon also participated in drafting the 2012 petition for
reconsideration. Pl.’s Sur-Response 4 n.6. The Court previously addressed this issue in Beach
TV III and found that conflicting “accounts of who knew what and when raise sufficient
questions of fact to preclude the Court from granting ACI or Mr. Solomon summary judgment”
with respect to when Mr. Solomon’s representation ended, which determined the statute of
limitations question. 306 F. Supp. 3d at 80–81, 89. Though it notes Plaintiff’s allegation, the
Court does not reopen the question of Mr. Solomon’s involvement in resolving the instant
motion.
17
additional requirement that such a licensee must broadcast a minimum amount of qualifying
local programming (mistakenly referring to § 338 of CBPA)). Therefore, according to a further
declaration provided by Mr. Colley in October 2019, because ACI’s 2012 statements were meant
to address the full-power TV station requirements, the main studio address provided in 2012 was
never intended to establish compliance with the “locally produced programming” requirement
for a Class A license pursuant to the CBPA and associated FCC regulations. 15 Oct. 28, 2019
Decl. of Jud Colley ¶¶ 3–7 (“Oct. 2019 Colley Decl.”), ECF No. 167-1. Defendant provides no
reason to ignore this testimony, apart from claiming it is inconsistent with prior sworn
statements. But the Court cannot outright discount Mr. Colley’s sworn testimony without
assessing the witness’s credibility. And this task is not the province of the Court, but rather a
matter for the trier of fact. Czekalski, 475 F.3d at 363 (holding that a court must “eschew
making credibility determinations or weighing the evidence” in resolving a motion for summary
judgment). Accordingly, Plaintiff’s 2019 statements concerning its main studio location for
purposes of CBPA compliance are not barred from consideration. 16
15
The Court does not mean to call into question any of the FCC or Circuit dispositions
concerning ACI’s application process, which rejected ACI’s petitions for reconsiderations. The
point here is a narrower one: putting to the side all questions of law concerning whether the
Panama City Studio can qualify as a main studio to establish WTCH’s compliance with the
locally-produced programming requirement pursuant to the CBPA and associated regulations,
there is, at a minimum, a genuine dispute of material fact concerning the meaning of “main
studio” in the 2012 submissions as compared to the 2019 submissions, which means that the
Court cannot say the 2019 material is a sham affidavit.
16
Defendant also argues that, because the 2012 Colley Declaration was included in the
legal proceedings before the FCC and the D.C. Circuit, the doctrine of judicial estoppel bars
consideration of the 2019 statements. Def.’s Reply 8–11. As this Court previously noted,
“[a]lthough ‘the circumstances under which judicial estoppel may appropriately be invoked are
probably not reducible to any general formulation of principle,’ three factors generally guide
courts’ analyses. First, the party’s later position usually must be ‘clearly inconsistent’ with its
earlier position. Second, a party generally must have succeeded in its earlier position to be
estopped from advancing its later position. Third, courts consider whether the party seeking to
assert an inconsistent position would derive an unfair advantage if it is not estopped.” Beach TV
18
Taking into account the possibility that Panama City qualifies as WTHC’s main studio
for purposes of CBPA compliance, Mr. Solomon’s argument is unavailing as a matter of law. As
a threshold point, Defendant’s contentions concerning retroactive application of regulations and
statutes is mistaken. See Def.’s Reply 14–15. This argument is not a paragon of clarity, but Mr.
Solomon appears to assert that, because “the events that gave rise to the legal malpractice claim
against [him]” occurred before promulgation of “[t]he FCC’s rules concerning the meaning of
locally-produced programming with respect to a group of commonly owned stations,” the Court
would give improper retroactive effect to the FCC’s interpretive rules if it were to apply them to
his conduct. Id. There are two problems with this argument, however. First, the malpractice
claim itself arises from submission of the statement of eligibility in December 1999. This
conduct occurred after the CBPA, which indicates what is required for a station to qualify for a
Class A license in the first instance, 47 U.S.C. § 336(f)(1)(B), took effect on November 29,
1999. As such, there does not seem to be a retroactivity issue with the specific conduct
(submission of the eligibility form) at issue in the malpractice suit. Furthermore, Defendant does
II, 254 F. Supp. 3d at 126 (quoting New Hampshire v. Maine, 532 U.S. 742, 750–51 (2007)
(citations omitted)). Here, Mr. Solomon maintains not only that the 2019 statement is
inconsistent and would give Plaintiff an unfair advantage, but also that ACI “achieved at least
partial success” in its prior use of the 2012 declaration in the proceeding before the FCC because
“the FCC disclaimed footnote 8 of its original opinion” and instead denied the petition on
procedural grounds. Def.’s Reply 10. However, as the Court just explained, it cannot conclude
as a matter of law that the two statements are so utterly at odds in the way that Defendant urges.
Moreover, the bare fact that the FCC disposition ultimately rested on separate, procedural
grounds does not indicate that it (1) provided any binding holding concerning the location of the
main studio where ACI created content for purposes of complying with the CBPA’s locally
produced content requirement or (2) addressed the location of ACI’s main studio in a way that
indicates ACI succeeded in its earlier position. The Court thus finds Defendant’s argument
unpersuasive. See Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir.
1991) (“Contradictory pleadings do not usually create a judicial estoppel unless the party
prevailed on the repudiated pleading.” (citing Astor Chauffeured Limousine Co. v. Runnfeldt
Investment Corp., 910 F.2d 1540, 1547–48 (7th Cir. 1990)). Accordingly, the Court rejects
Defendant’s appeal to the doctrine of judicial estoppel.
19
not explain why it would be improper to apply the interpretive rules that the CBPA explicitly
directed the FCC to establish within 120 days of November 29, 1999, id. § 336(f)(1)(A),
particularly when, as Plaintiff points out, “the FCC’s interpretive rules were in effect on June 9,
2000[,] when the FCC ruled ACI was ineligible for a Class A license,” Pl.’s Sur-Response 9; see
2000 Report and Order 8985. 17
Second, this retroactivity argument fails even under Defendant’s own theory. Citing
Landgraf v. USI Film Products, 511 U.S. 244 (1994), Mr. Solomon suggests that, because there
is no retroactive effect for the statute, “the court ‘is to apply the law in effect at the time it
renders its decision.’” Def.’s Reply 15 (quoting Landgraf, 511 U.S. at 277). He then asserts that
ACI cannot establish eligibility under the current version of the regulation because the FCC
eliminated the main studio rule in 2017, and “ACI has not met its burden of showing that its
programming during the 90 days preceding the enactment of the CBPA on November 29, 1999”
satisfied the CBPA’s requirements for “locally produced programming” under the two current
regulatory definitions. Id. (quoting 47 C.F.R. § 73.6000 (2019)). As Plaintiff underscores,
though, and as the Court previously described, the 2017 regulatory changes maintained the
grandfathering provisions that permitted a main studio in operation on November 29, 1999, to
count as a site for local production of programming for purposes of CBPA compliance. Pl.’s
Opp’n 9–10; see also Pl.’s Sur-Response 9 n.10 (citing Pl.’s Opp’n 9). Accordingly, even under
17
That said, the Court does not endorse Plaintiff’s reasoning in its entirety. ACI
maintains that the Court’s prior finding concerning the date of the injury for purposes of statute
of limitation analysis, see Beach TV III, 306 F. Supp. 3d at 83, is the same date that matters for
retroactivity analysis, Pl.’s Sur-Response 9–10 (discussing Beach TV III). The question of when
the cause of action for malpractice accrued is a discrete one from when the relevant conduct
occurred. Here, as discussed above, the post-CBPA, December 1999 submission of the
statement of eligibility is the relevant action, and it is the operative date of the final, statutorily-
required regulation on June 9, 2000, that matters—not, as Plaintiff seems to argue, the FCC’s
ruling per se on that same date.
20
the current version of the regulations, the operative question remains whether a reasonable finder
of fact could conclude that the Panama City studio qualifies as WTHC’s main studio in a manner
that establishes Class A eligibility.
The short answer to this question is yes: Plaintiff has established genuine disputes of
material fact concerning whether WTHC can rely on Panama City as its main studio and thereby
establish that it would have qualified for a Class A license. For one, the issues previously
discussed regarding the context of the 2019 statement and the credibility of Mr. Colley as a
witness themselves require examination by the trier of fact to resolve. Furthermore, Plaintiff
points to other evidence to counter Mr. Solomon’s arguments that WTHC has not complied with
other aspects of the main studio rule. For instance, in addition to his contentions that WTHC did
not locally produce its programming, Defendant maintains that WTHC was not properly staffed.
But if the Panama City location and not the Peachtree, Atlanta location is WTHC’s “main
studio” for purposes of compliance with controlling law, which ultimately turns on the same
questions of witness credibility previously discussed, then Plaintiff has provided evidence of
compliance with these elements of the main studio rule. See Pl.’s Opp’n 5 (stating that ACI
“used the Panama City location for the creation of virtually all of its programming” as of
November 28, 1999, and that this location “had the equipment capable of originating
programming and was staffed by the requisite two people”); Sept. 2019 Colley Decl. ¶¶ 5, 10,
16; Declaration of W. James Mac Naughton (“Naughton Decl.”) 19–36 (Ex. B), ECF No. 153-4
(providing wage and tax statements for employees at Panama City location). In addition,
Plaintiff suggests that Mr. Solomon himself was aware of the manner in which ACI relied on the
Panama City studio to establish its CBPA compliance. Pl.’s Opp’n 10. In support of this point,
Plaintiff provides an email between the parties that indicates that Mr. Solomon was aware of the
21
FCC’s grandfather provisions. Oct. 2019 Colley Decl. 11, Ex. B, Nov. 10, 2004 Email Between
Henry Solomon and Jud Colley, ECF No. 167-1 at 11 (including statement by Mr. Solomon that
“Class A stations must have a main studio[;] . . . [h]owever, studios used prior to attaining Class
A status, may continue to be used even if not within Grade B”). Although this point is not
dispositive, and noting that Mr. Solomon strongly contests his awareness of ACI’s reliance on
Panama City as its main studio, see Def.’s Reply 6; Declaration of Henry Solomon (“Solomon
Decl.”) ¶ 9, ECF 162-10, the disagreement about which party’s testimony to credit with respect
to the main studio location lends further support to the Court’s conclusion that there are genuine
disputes that remain the province of the factfinder. Accordingly, the Court denies Defendant’s
motion for summary judgment.
B. Plaintiff’s Motion for Rule 11 Sanctions
Additionally, Plaintiff moves for sanctions pursuant to Federal Rule of Civil Procedure
11(b)(1) and 11(b)(2). Pl.’s Mem. L. in Supp. of a Mot. for Rule 11 Sanctions Against Counsel
for Def. Henry Solomon (“Pl.’s Rule 11 Mem.”), ECF No. 159-1. More specifically, Plaintiff
maintains that Defendant’s motion, which initially maintained that “ACI did not and could not
qualify for a Class A license for WTHC-LD on the grounds” that (1) its programming “is not
‘locally produced programming’ within the meaning of 47 C.F.R. § 73.6000 as amended,” and
(2) it lacked a “main studio,” represents a frivolous legal argument in contravention of Rule
11(b)(2). 18 Because Mr. Solomon “relied solely on the Supplemental Expert Witness Statement
of Jack N. Goodman” to make his argument, and this argument “failed to consider that ACI’s
18
Although Plaintiff moves under Rules 11(b)(1) and (b)(2), see Pl.’s Rule 11 Mem. 1, as
Defendant notes, Plaintiff’s memorandum never again invokes or cites to Rule 11(b)(1), see
Def.’s Opp’n to Pl.’s Mot. for Rule 11 Sanctions 3, ECF No. 164. Because Plaintiff presents no
argument developing this point and because the Court did in fact authorize Defendant to pursue a
“viable theory” via motion during the parties June 5, 2019, status conference, see Def.’s Opp’n
to Pl.’s Rule 11 Mot. 4, the Court does not consider Rule 11(b)(1) in the following analysis.
22
‘locally produced programming’ was edited at ACI’s grandfathered ‘main studio’ in Panama
City, [Florida],” Plaintiff maintains that Defendant’s argument lacks “any merit whatsoever” and
warrants sanctions. Pl.’s Reply to Opp’n of Def. Henry A. Solomon to Mot. for Sanctions (“Pl.’s
Reply in Supp. of Rule 11 Mot.”) 1–2, ECF No. 168. For the following reasons, the Court
disagrees with the manner in which Plaintiff attempts to paint Defendant’s argument and
declines to enter Rule 11 sanctions.
“Rule 11 of the Federal Rules of Civil Procedure provides that in submitting motions and
other pleadings, or defending them before the district court, attorneys vouch that ‘the claims,
defenses, and other legal contentions therein are warranted by existing law or a nonfrivolous
argument for the extension, modification, or reversal of existing law or the establishment of new
law.’” SEC v. Loving Spirit Found. Inc., 392 F.3d 486, 494 (D.C. Cir. 2004) (quoting Fed. R.
Civ. P. 11(b)(2)); see also Holmes v. FEC, 823 F.3d 69, 74 (D.C. Cir. 2016). To resolve a Rule
11 motion, a court is to apply “an objective standard of reasonable inquiry on represented parties
who sign papers or pleadings.” Bus. Guides, Inc. v. Chromatic Commc’ns Enters., 498 U.S. 533,
554 (1991). “A party’s representations are ‘frivolous and thus worthy of sanctions when they are
utterly lacking in legal merit and evidentiary support.’” Intelsat USA Sales LLC v. Juch-Tech,
Inc., No. 10-cv-2095, 2014 WL 12787643, at *3 (D.D.C. Oct. 15, 2014) (quoting ARMA, S.R.O.
v. BAE Sys. Overseas, Inc., 961 F. Supp. 2d 245, 271 (D.D.C. 2013) (internal quotation marks
and citation omitted)). The court “has the discretion to determine both ‘whether a Rule 11
violation has occurred and what sanctions should be imposed if there has been a violation.’”
Cobell v. Norton, 211 F.R.D. 7, 10 (D.D.C. 2002) (quoting Long v. U.S. Dep’t of Justice, 207
F.R.D. 4 (D.D.C. 2002)).
23
Here, the Court does not find Defendant’s motion to be frivolous in a manner that
warrants sanctions. Much of Plaintiff’s motion amounts to a little more than restatement of the
same substantive arguments that ACI has already presented. Plaintiff’s contentions rest, at
bottom, on Defendant’s failure to consider the grandfathering provision of the “main studio” rule
and the manner in which it might interact with ACI’s Class A license eligibility. As ACI puts
the point: “Solomon’s reliance on the Goodman opinion overlooked the salient and dispositive
detail that the FCC grandfathered the Panama City Studio so it qualifies as a ‘main studio’ for all
Class A purposes . . . . The diligence required by Rule 11 calls for Solomon to at least bring that
detail to the Court’s attention . . . .” Pl.’s Reply in Supp. of Rule 11 Mot. 3. The problem with
this argument, though, is that characterizing the motion as legally frivolous in this manner
requires assuming that Mr. Solomon was aware of how ACI relied on the Panama City studio for
compliance purposes at the time that he filed the motion for summary judgment. And as the
Court just discussed, what Mr. Solomon knew, at what point, is disputed. In his opposition to
Plaintiff’s motion for Rule 11 sanctions, moreover, Defendant states that it was not until
September 13, 2019, “more than two months after the filing of the summary judgment motion,”
that Mr. Solomon first became aware of “the allegations that [he] knew of the facts regarding the
production and distribution” for ACI and that ACI “relied on those facts” in making
representations to the FCC concerning ACI’s Class A license eligibility. Def.’s Opp’n to Rule
11 Mot. 5 (discussing Sept. 2019 Colley Decl.).
For Rule 11 purposes, the question for the Court is whether, if Defendant in fact only
learned of this information after filing the summary judgment motion, Defendant’s counsel,
“under the circumstances,” “conduct[ed] a reasonable inquiry into the facts and the law before
filing.” Bus. Guides, 498 U.S. at 551; see also Sweigert v. Podesta, No. 17-cv-2330, 2019 WL
24
1243679, at *3 (D.D.C. Mar. 18, 2019) (quoting Bus. Guides and discussing standard). In this
instance, because Plaintiff so strongly rests its case on the legal frivolousness of Defendant’s
failure to even consider the grandfather aspects of the main studio rule, the Court’s task is made
more difficult. 19 Plaintiff is not explicit about why, if at all, the Court should find that
Defendant’s counsel did not reasonably discover the relevant facts until later in litigation than
ACI might prefer. Instead, ACI moves for sanctions because it sees the legal argument presented
as fatally flawed, to the point that it is frivolous for Defendant to even make it. Again, however,
this Court would need to assess witness credibility to determine whether Mr. Solomon in fact
legitimately relied on Mr. Colley’s representations, such that his late realizations concerning
ACI’s reliance on the Panama City main studio could be timely (and his counsel’s initial failure
to raise this point could be understandable), or whether he is now concealing his own
involvement with respect to ACI (and his initial failure to raise this point could amount to
making an argument without any legal or evidentiary basis). This category of dispute, as
discussed above, is for the finder of fact—not the Court. 20 Accordingly, the Court is left only
19
Plaintiff presents further contentions concerning the sham affidavit rule and the
retroactivity argument, but not until ACI’s reply brief. See Pl.’s Reply in Supp. of Rule 11 Mot.
3–4. Courts in this Circuit have “generally held that issues not raised until the reply brief are
waived.” Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181 (D.C. Cir. 2000) (quoting
Board of Regents of Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996)); see also
Walker v. Pharm. Research & Mfrs. of Am., 461 F. Supp. 2d 52, 58 n.9 (D.D.C. 2006) (citing In
re Asemani, 455 F.3d 296, 300 (D.C. Cir. 2006)). “This principle holds when a party does not
argue a point until its reply brief, even if the party referred to the argument in its opening brief.”
Bloche v. DOD, 414 F. Supp. 3d 6, 23 n.5 (D.D.C. 2019) (citing Sitka Sound Seafoods, 206 F.3d
at 1181). Here, by failing to develop these points until its reply brief, ACI has waived other
bases from which the Court might conclude that Defendant’s arguments are frivolous.
20
That said, the Court is skeptical that an attorney who holds himself out as an expert in
FCC law would rely so wholly on his client’s assessments of compliance, without ever at least
engaging in a conversation that would bring to light the kind of information that Mr. Solomon
expressly disclaims knowing. And the emails upon which Plaintiff relies seem to confirm that
Mr. Solomon indeed advised Plaintiff on substantive aspects of the main studio rule and the
requirements of local programming.
25
with Plaintiff’s assertions that, as a matter of law, Defendant’s arguments fail. But this leads the
Court in a circle once more: it is not possible to make this call without putting a thumb on the
scale of many of the very same factors that, because they are matters for the finder of fact, favor
Plaintiff in the Court’s denial of Defendant’s motion. Thus, the Court declines to enter Rule 11
sanctions. 21
V. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is DENIED and
Plaintiff’s motion for Rule 11 sanctions is DENIED. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: March 30, 2020 RUDOLPH CONTRERAS
United States District Judge
21
Although the Court does not credit ACI’s further arguments because they were not
raised until Plaintiff’s reply brief, see Sitka Sound Seafoods, 206 F.3d at 1181, it is worth noting
that they similarly retread terrain already covered. First, Plaintiff contends that Defendant’s
invocation of the sham affidavit doctrine is frivolous. Pl.’s Reply in Supp. of Rule 11 Mot. 3.
As discussed previously, the two statements are not plainly inconsistent because a finder of fact
could determine, reading the statements in context, that the 2012 and 2019 statements refer to
different understandings of a “main studio” in the manner that ACI urges. But the Court’s
conclusion that the 2019 declaration is not plainly barred as a sham affidavit is not tantamount to
a holding concerning the operative effect of Mr. Colley’s 2019 statements. Particularly in light
of the complex interplay of regulatory and statutory law across over 20 years of administrative
and legal proceedings, the Court hesitates to say that it rises to the level of frivolity for
Defendant to have attacked the change in “main studio” location between the 2012 and 2019
declarations. In addition, Plaintiff maintains that Defendant’s arguments about ACI’s reliance on
the grandfather provision are frivolous. Id. at 4. This contention amounts to little more than a
reiteration of ACI’s argument that it has established Class A eligibility as a matter of law
because “[t]he Panama City Studio met” the “main studio” “definition for ACI.” Id. Standing
alone, ACI’s allegations here do not provide adequate grounds for Rule 11 sanctions.
26