CPUC Files Cross-Motion for Summary Judgment Against MetroPCS

Allegations in a MetroPCS March 21 motion for summary judgment that the California Public Utilities Commission failed to apply its calculated USF surcharge in the manner prescribed by state law (see 2303220063) are without merit, said the CPUC’s own cross-motion for summary judgment Friday (docket 3:17-cv-05959) in U.S. District Court for Northern California in San Francisco.

MetroPCS sued the CPUC in 2017 to challenge California assessing USF payments for prepaid phone service. MetroPCS said the 2014 California Prepaid Act and related CPUC resolutions imposing USF surcharges on prepaid wireless are unlawful and preempted by federal law.

Using multiple dispositive motions in the six-year life of its litigation, MetroPCS “had its chance to make its best argument and to introduce its best evidence” showing the CPUC’s resolutions “violate federal law as applied,” said CPUC’s cross-motion. “For six years, it has failed to do so,” it said. MetroPCS “now seeks to advance new theories and introduce new evidence to support its claims,” it said. The court “should not allow it,” it said.

Without that new evidence, which CPUC wants the court to strike, MetroPCS “has not supported the essential elements of its claim, and the CPUC is entitled to judgment as a matter of law,” said the cross-motion. Even if the court were to consider that new evidence, it still couldn’t support a judgment in MetroPCS’ favor, it said. The new evidence “is illogical, it contradicts other evidence of record, and in places it even contradicts itself,” it said. The court, “at a minimum,” should decide MetroPCS’ “proffered facts are subject to dispute and deny its motion for summary judgment,” it said.

The 9th Circuit U.S. Appeals Court three years ago directed the district court to ascertain whether applying the CPUC resolutions to MetroPCS resulted in double assessments on MetroPCS’ revenue, said the cross-motion. “An essential element of MetroPCS’ remaining as-applied preemption case is a quantitative showing,” it said: "What were MetroPCS’ intrastate and interstate revenues, and what portion of those revenues would the CPUC’s resolutions double-assess? But in six years of litigation, MetroPCS has “never set forth specific dollar amounts of revenue impermissibly surcharged, nor did it present the requisite supporting documentation,” it said. “MetroPCS has failed to establish an essential element of its case.”

Instead of substantiating with financial, customer, and business records “the specific amount of broadband revenues that the CPUC’s surcharge would purportedly assess,” MetroPCS chose to withhold those records from the CPUC and from the court until now, said the cross-motion. That “extraordinary delay,” compounded by the fact that MetroPCS never supplemented its disclosures, “prejudices the CPUC” and is cause for the court “to strike this new evidence,” it said.

Even if the court were to let the new evidence in, that new evidence doesn’t entitle MetroPCS to judgment as a matter of law, said the cross-motion. The new evidence “is patently flawed, and patently subject to dispute," it said.