MEMORANDUM-DECISION AND ORDER
Plaintiff Omnipoint Communications, Inc., ("Omnipoint"), brings thisaction pursuant to the Telecommunications Act of 1996 ("the Act"),47 U.S.C. § 253(a) and 42 U.S.C. § 1983. Omnipoint moves forpartial summary judgment on the issue of liability pursuant to Fed.R.Civ. P. 56(a).1 Docket Nos. 22-26. Defendants Richard Comi, ComiTelecommunications Services, Lawrence (Rusty) Monroe and Monroe TelcomAssociates (referred to either separately as "Comi" or "Monroe" orcollectively as "Defendants"), oppose Omnipoint's motion (Docket Nos.32-33, 35) and have cross-moved for summary judgment pursuant toFed.R.Civ.P. 56(b) (Docket Nos. 27-32). The parties have consented tohave the assigned U.S. Magistrate Judge conduct any and all furtherproceedings in this case, including the entry of final judgment, inaccordance with 28 U.S.C. § 636(c) and N.D.N.Y.L.R. 72.2. DocketNo. 15. For the reasons that follow, Omnipoint's motion for summaryjudgment is denied and Defendants' cross-motion for summary judgment isgranted.
I. Summary Judgment Standard
Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate onlywhere "there is no genuine issue as to any material fact and . . . themoving party is entitled to judgment as a matter of law." The movingparty bears the burden to demonstrate through "pleadings, depositions,answers to interrogatories, and admissions on file, together withaffidavits, if any," that there is no genuine issue of material fact.F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing CelotexCorp. v. Catrett, 477 U.S. 317, 323 (1986)). To defeat a motion forsummary judgment, the non-movant must "set forth specific facts showingthat there is a genuine issue for trial," and cannot rest on "mereallegations or denials" of the facts submitted by the movant.Fed.R.Civ.P. 56(e); see also Rexnord Holdings, Inc. v. Bidermann,21 F.3d 522, 525-26 (2d Cir. 1994). When considering a motion forsummary judgment, the court must resolve all ambiguities and draw allreasonable inferences in favor of the non-movant. Nora Beverages, Inc.v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).
II. Background
A review of the parties' papers demonstrates that there are no genuineissues of material fact. Thus, the facts discussed herein are mostlyextrapolated from the parties' N.D.N.Y.L.R. 7.1 Statements of MaterialFacts ("7.1 Statement"), unless otherwise noted. Docket Nos. 23, 28& 33. It must be noted, however, that Omnipoint has not submitted aresponse to Defendants' 7.1 Statement in support of their motion forsummary judgment. Thus, for any facts set forth in Defendants' 7.1Statement in support of their motion for summary judgment that were notaddressed in Omnipoint's 7.1 Statement, such facts are deemed admitted.See N.D.N.Y.L.R. 7.1(a)(3) ("Any facts set forth in the Statement ofMaterial Facts shall be deemed admitted unless specifically controvertedby the opposing party." (emphasis in original)).
In March 1998, Comi was retained by the Town of Barker ("Town") toprovide consultation on various telecommunications issues. Def. 7.1Statement (Docket No. 28), ¶ 8. Comi, in conjunction with Monroe, werehired by the Town to prepare a telecommunications tower ordinance, toreview and analyze any applications for cellular towers and relatedfacilities and to advise the Town with respect to a proposal by Omnipointto lease Town property for the construction of a cellular tower. Id. at¶ 9. In March 1998, at the Town's request, Defendant provided a proposedlocal law, establishing a four month moratorium on the issuance of Townpermits for the construction of telecommunications towers and relatedfacilities. Id. at ¶ 12. On March 23, 1998, the Town enacted theTelecommunications Towers Moratorium ("moratorium"), without firstobtaining review by the Broome County Planning Board ("Planning Board").Id. at ¶ 14; Pl. 7.1 Statement (Docket No. 23), ¶ 5. On July 13, 1998,the Town extended the moratorium until August 3, 1998, without firstobtaining review of the extension by the Planning Board. Pl. 7.1Statement, ¶¶ 6 & 7.
On or about March 19, 1998, Omnipoint presented to the Town a proposalfor the lease of property located at Hyde Street and owned by the Town.Def. 7.1 Statement, ¶ 10. In exchange for lease payments, Omnipointproposed to construct a 175 foot tower antenna and related wirelessequipment on the property. Id. at ¶ 11. In April and May of 1998, Comibegan to negotiate on behalf of the Town with Omnipoint, concerning theproposed lease. Id. at ¶ 15. The Town, at all times, approved thenegotiations conducted by Comi. Id. at ¶ 16. Further, the Town'sattorney was present at all meetings. Id. Negotiations continued intoJune 1998, but the parties were unable to reach an agreement. Id. at ¶20. Therefore, on June 22, 1998, Omnipoint formally withdrew itsproposal to lease Town property. Id.
On August 3, 1998, the Town enacted Local Law No. 1 of 1998, titled theTelecommunications Tower siting and Special Use Permit Law ("Local LawNo. 1"). Id. at ¶ 21. The language of Local Law No. 1 was based on adraft ordinance provided by Comi under the consulting services contract.Id. at ¶ 22. Local Law No. 1 imposed, inter alia, special use permitrequirements and application fees on telecommunications providers. SeeSpitzer Decl. (Docket No. 24), Ex. A. Local Law No. 1 also requiredtelecommunication services to first be constructed on publicly owned landbefore construction could be started on privately owned land. See id. OnAugust 25, 1998, Omnipoint submitted an application to the Town forconstruction of a telecommunications tower and related facilities onproperty to be leased from Russell Jackson. Def. 7.1 Statement, ¶ 26.Pursuant to Local Law No. 1, Omnipoint paid a $6,000 application fee anda total of $14,858.69 in application review fees to the Town. KulikDecl. (Docket No. 25), ¶¶ 17 & 19. Apparently, these fees were usedto compensate Defendants for their services under the consulting servicescontract. Id. at ¶ 19. Comi reviewed the application and provided theTown with its opinions and advice under the contract. Def. 7.1Statement, ¶ 27; Pl. 7.1 Statement, ¶ 22. At the Town's direction,Defendants communicated various deficiencies in the application toOmnipoint as well as the additional materials submitted by the companythrough January 1999. Def. 7.1 Statement, ¶ 28. On March 8, 1999, theTown Board held a public hearing on Omnipoint's application, which wasultimately approved by the Town. Id. at ¶¶ 30 & 31. Omnipoint wasissued construction permits on June 15, 1999, and the tower becameoperational on June 30, 1999. Id. at ¶¶ 31 & 32.
On November 15, 1999, the Town adopted Local Law No. 2 of 1999 (LocalLaw No. 2), which by its terms rescinded Local Law No. 1. Id. at ¶ 35.Omnipoint commenced this action on November 12, 1999. Docket No. 1.Aside from these Defendants, the complaint also named the Town, the TownBoard, Lois Dilworth, Paul L. Smith, Albert Chasse, Gary Blackman andTerry Dean, all of whom constituted the Town Board ("Town Defendants").By approval of the Court on January 7, 2002, a settlement was reachedbetween Omnipoint and the Town Defendants. Docket No. 17. By thesettlement terms, the Town declared that Local Law No. 1 was illegal.Id.
III. Procedural Issues
A. Statute of Limitations
As an initial matter, Defendants contend that Omnipoint's claims underthe Act are barred by the applicable statute of limitations.
The Act vests federal courts with the authority to review actions oromissions by state and local governments regarding the construction oftelecommunications equipment. See 42 U.S.C. § 332(c)(7)(B)(v). Aplaintiff, however, must seek judicial review within 30 days after theaction or failure to act. Id. Here, Omnipoint received its constructionpermits on June 14, 1999, and its tower became operational on June 30,1999. Thus, Omnipoint should have filed its complaint no later thanSeptember 1, 1999. It, however, did not file this action until November12, 1999. Docket No. 1. Nonetheless, Defendants did not plead or raisein a timely manner the statute of limitations affirmative defense. SeeDocket No. 4; see also Chimblo v. Commissioner of Internal Revenue,177 F.3d 119, 125 (2d Cir. 1999) ("As a general matter, the statute oflimitations is an affirmative defense that must be pleaded; it is notjurisdictional."). Defendants do not assert, and the record does notreflect,any reason why this affirmative defense should not be deemed waived.
Accordingly, Defendants' contention that Omnipoint's claims under theAct are time barred is rejected.
B. Mootness Doctrine
Defendants also contend that the settlement agreement between Omnipointand the Town Defendants render this action moot. Omnipoint confuses themootness doctrine with Fed.R. Civ. P. 19, which sets forth therequirements for joinder of a necessary party. The former is an aspectof Article III jurisdiction, while the latter ensures the rights of allstakeholders in the subject matter and prevents inconsistent judicialoutcomes.
Here, Omnipoint seeks three types of relief: 1) an order declaring thatLocal Law No. 1 violated the Act, the United States Constitution, the NewYork State Constitution, as well as other federal and state statutes; 2)an order declaring Defendants violated its rights under the United StatesConstitution; and 3) an order requiring Defendants to refund all feesreceived from the Town under the Local Law, plus interest. Article IIIjurisdiction requires the presence of a case or controversy throughoutthe litigation. This requires Omnipoint to continue to have a "`legallycognizable interest in the outcome' of [the] case" throughout theduration of this litigation, otherwise it is moot and must be dismissed.Muhammad v. City of N.Y. Dep't of Corr., 126 F.3d 119, 122-23 (2d Cir.1997) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631(1979)).
In the settlement with the Town Defendants, however, the Town declaredthat Local Law No. 1 was illegal. Docket No. 17. Further, on November15, 1999, Local Law No. 1 was rescinded by the terms of Local Law No. 2.Def. 7.1 Statement, ¶ 35. Thus, Omnipoint no longer has a "personalstake" in this Court declaring Local Law No. 1 illegal.2
Accordingly, Omnipoint's requests for an order declaring Local Law No.1 illegal under various federal and state statutory and constitutionalprovisions are moot.
C. Standing
Another aspect of Article III jurisdiction is the doctrine ofstanding. See Garelick v. Sullivan, 987 F.2d 913, 919 (2d Cir. 1993).While neither party raised the issue of standing, "[t]he federal courtsare under an independent obligation to examine their own jurisdiction,and standing `is perhaps the most important' of [the jurisdictional]doctrines." United States v. Hays, 515 U.S. 737, 742 (1995) (quotingFW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31 (1990) (citationsomitted)).
The issue of standing should be examine at the initiation of the actionand involves both constitutional and prudential requirements. Under theconstitutional requirements, a plaintiff must demonstrate that: 1) he orshe has suffered an "injury in fact;" 2) there is a causal connectionbetween the injury and the conduct at issue; and 3) the injury is capableof being redressed by a favorable decision. See Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-61 (1992). Even where a plaintiff satisfiesthese constitutional requirements, "a court may nevertheless denystanding for prudential reasons." Comer v. Cisneros,37 F.3d 775, 787(2d Cir. 1994) (quotation marks and citation omitted). These prudentialrequirements act as "rules of judicial self-restraint" and suggest, interalia, that a plaintiff may not rest his or her claim on the legal rightsof a third-party. See Sullivan v. Syracuse Housing Auth., 962 F.2d 1101,1106 (2d Cir. 1992) (citations omitted).
Here, Omnipoint seeks an order: 1) declaring that Defendants violatedthe Act and the Constitution; and 2) directing Defendants to refund thefees they received by the Town under the consulting services contract.With respect to Omnipoint's declaratory relief, it "cannot rely on pastinjury to satisfy the injury requirement but must show a likelihood that[it] will be injured in the future." Deshawn E. by Charlotte B. v.Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles v.Lyons, 461 U.S. 95, 105-06 (1983)). When Omnipoint filed this action, ithad withdrawn its 1998 proposal to lease Town property and its 1999application to build a telecommunications tower had been approved.Further, the moratorium had expired and the Town had already acceptedDefendants advice and enacted Local Law No. 1. Thus, Omnipoint may notrely on these past injuries, but must show a likelihood of injury in thefuture.
The record, however, demonstrates that Defendants no longer provideservices in the Town. Comi Aff. (Docket No. 30), ¶ 22. Therefore,Omnipoint will not have to negotiate any future lease proposals in theTown with the Defendants. Further, Defendants will not be reviewing anyfuture Omnipoint applications for the construction of telecommunicationtowers in the Town. To the extent Omnipoint may have dealing withDefendants in other localities is outside the scope of this litigationand is irrelevant. Thus, Omnipoint has not established that it willlikely be harmed by Defendants in the future and it lacked standing toseek declaratory relief.
With respect to Omnipoint's request for an order directing Defendantsto refund the compensation they received under the consulting servicescontract, it is assumed Omnipoint has satisfied the constitutionalrequirements of standing. Nonetheless, prudential concerns direct thisCourt to exercise self-restraint. Omnipoint contends that Defendantscharged the Town a fee for negotiating the failed 1998 lease proposal andthen that charge was added onto the application fee. See Kulik Decl., ¶14 & Ex. B. Assuming this to be true, the application fee wasassessed by the Town and Omnipoint paid the Town. Similarly, Defendantsbilled the Town for their services and the Town paid the Defendants underthe contract. Both Omnipoint and Defendants were in privity with theTown, but there were not in privity with each other. In essence,Omnipoint is asking this Court to hold that Defendants breached theconsulting services contract they had with the Town and to directDefendants to refund their compensation under the contract. Omnipoint isneither a party to this contract nor a third-party beneficiary.Therefore, it lacked standing to seek such relief. See Eaves BrooksCostume Co., Inc. v. Y.B.H. Realty Corp., 557 N.Y.S.2d 286, 289 (1990).
Omnipoint contends that it does not need to be in privity of contractbecause the Town assigned to Omnipoint "any and all rights to recoverunder any cause of action against . . . defendants for any claim the Townmay have against them relative to this suit." See Settlement Agreement(Docket No. 17), ¶ 9. The problem with Omnipoint's contention is thatthe Town never asserted any cross-claims against Defendants in itsanswer. Docket No. 2. While Omnipoint may have the rightto sue Defendants for breach of contract, it has failed to plead orprove, and the record does not demonstrate, such cause of action.
Accordingly, Omnipoint's request for declaratory relief or an orderdirecting Defendants to refund the fees they received by the Town underthe consulting services contract are dismissed because Omnipoint lackedstanding to challenge Defendants' conduct in negotiating the 1998 leaseof Town property or in reviewing the 1999 application to build atelecommunications tower.
IV. Remaining Issue
It is worth noting that Local Law No. 1 was still in effect whenOmnipoint filed this action. Therefore, there is some basis for arguingthat Omnipoint has standing to claim that Defendants violated its rightswhen they proposed and drafted the language of Local Law No. 1.Nonetheless, Defendants correctly contend that they were not acting undercolor of state law when they advised the Town on, or drafted the languageof, Local Law No. 1.
"[Section] 1983, enacted pursuant to the authority of Congress toenforce the Fourteenth Amendment, prohibits interference with federalrights under color of state law." Rendell-Baker v. Kohn, 457 U.S. 830,838 (1982). The color of state law requirement has been analyzedidentically to the "state action" requirement of the FourteenthAmendment. See id. at 841. Generally, private actors are not liableunder section 1983 unless "the conduct allegedly causing the deprivationof a federal right [can] be fairly attributable to the State." Lugar v.Edmondson Oil Co., 457 U.S. 922, 937 (1982); see also American Manfs.Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). Moreover, a plaintiffbears the burden of proof to establish that the acts of private personsor entities constitute state action under section 1983. Flagg Bros.,Inc. v. Brooks, 436 U.S. 149, 155 (1978); Hadges v. Yonker Racing Corp.,918 F.2d 1079, 1082-83 n. 3 (2d Cir. 1990).
Federal courts have generally used four tests3 to determine whethera private actor has acted under color of state law. These tests are: 1)the public function test;4 2) the close-nexus test; 3) the symbioticrelationship test; and 4) the joint activity test. See Island Online,Inc. v. Network Soultions, Inc., 119 F. Supp.2d 289, 304-07 (E.D.N.Y.2000). Omnipoint contends that tests one through three, but not four,are applicable here. Thus, the joint activity test is not discussed.
First, "[t]he `public function' test is more accurately described as an`exclusive public function' test." Id. at 305 (quoting Rendell-Baker,457 U.S. at 842). This test is strictly limited to instances where theprivate actor performs functions that are "traditionally the exclusiveprerogative of the State." Id. (quotation marks and citation omitted).This test was first recognized by the Supreme Court in Marsh v. Alabama,326 U.S. 501, 507-08 (1946). In Marsh, "[t]he town was indistinguishablefrom any other municipality, but there was one crucial difference— the company owned the entire town and had taken over allmunicipal functions." State v. Wicklund, 589 N.W.2d 793, 797 (Minn.1999). Omnipoint relies on Marsh in support of its contention thatDefendants acted under color of state law when it advised anddrafted Local Law No. 1. Specifically, Omnipoint asserts that the companyin Marsh was engaged in a traditional public function, i.e., the issuanceof permits. Further, Omnipoint asserts the Defendants here were engaged ina traditional public function, i.e., land use planning. However, unlikethe company in Marsh, the Defendants here do not own nor operate theTown. Moreover, the facts here are easily distinguishable from Marsh,where the company itself issued the permits. Here, Defendants may havebeen actively involved in the legislative process, but in the end, it wasthe Town that accepted Defendants' advice and enacted Local Law No. 1.Therefore, Omnipoint's contention is rejected.
Second, the close-nexus and symbiotic relationship tests are verysimilar and are thus, discussed together. The close-nexus test considerswhether there is a sufficiently close nexus between the state and thechallenged action so that the action of the private actor "may be fairlytreated as that of the state itself." Blum v. Yaretsky, 457 U.S. 991,1004 (1982). The state must have exercised "coercive power" or "suchsignificant encouragement . . . that the choice must in law be deemedthat of the State." Id. The symbiotic relationship test considerswhether the state has "so far insinuated itself into a position ofinterdependence with the private actor that there is a `symbioticrelationship' between them." Moose Lodge No. 107 v. Irvis, 407 U.S. 163,175 (1972) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 725(1961)). The Supreme Court has limited this test "to cases involvingleases of public property," Island Online, 119 F. Supp.2d at 306 (citingJackson v. Metropolitan Edison Co., 419 U.S. 345, 358 (1974)), and thus,it is not applicable here. Moreover, these tests usually examine theconduct of the state, not the conduct of the private entity. See Blum,457 U.S. at 1004.
Nonetheless, a private actor may be found to have acted under color ofstate law where he or she "has operated as a willful participant in jointactivity with the state or its agents." See Gorman-Bakos v. CornellCo-op Extension of Schenectady County, 252 F.3d 545, 551-52 (2d Cir.2001). Here, Omnipoint contends that Defendants acted under color ofstate law when they drafted the language of Local Law No. 1. Defendants'conduct, however, was mere advice. Where a private actor merely providesprofessional advice, such advice cannot be considered state action forpurposes of section 1983. See, e.g., Goetz v. Windsor Cent. Sch. Dist.,593 F. Supp. 526, 528-29 (N.D.N.Y. 1984). Furthermore, if this Courtwere to adopt Omnipoint's contention, any private citizen thatrecommended proposed legislation or drafted proposed legislation that wassubsequently declared unconstitutional would be subject to liabilityunder section 1983. While Defendants provided advice, it was ultimatelythe Town's decision to accept that advice.
Therefore, Defendants were not acting under color of state law whenthey recommended and drafted proposed legislation.
WHEREFORE, it is hereby
ORDERED that Omnipoint's motion for summary judgment is DENIED;
ORDERED that Defendants' motion for summary judgment is GRANTED; and itis
ORDERED that the case is DISMISSED in its ENTIRETY.
1. Counsel for Omnipoint is reminded of N.D.N.Y.L.R. 7.1(a)(1), whichstates in pertinent part, "[n]o party shall file or serve a memorandum oflaw that exceeds twenty-five (25) pages in length, unless leave . . . isobtained prior to filing." (emphasis in original).
2. Throughout its papers, Omnipoint repeatedly refers to otherlocalities in which Defendants are "peddling" their illegal modelordinance. Assuming this assertion to be true, it does not create astake in this litigation. Indeed, it appears as if Omnipoint seeksnothing more than an advisory opinion from this Court, which is ofcourse, wholly inappropriate. See Center for Reproductive Law &Policy v. Bush, 304 F.3d 183, 195 (2d Cir. 2002).
3. While the case law refers to four tests, courts have used thesetests interchangeably and the test do not always fall into easilyidentifiable categories.
4. The public function test is also referred to at the traditionalpowers test.