United States District Court, District of Columbia
Document, 71, 74
MEMORANDUM OPINION DENYING PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT; DENYING DEFENDANT'S MOTION FOR
RUDOLPH CONTRERAS, United States District Judge.
the inclusion of a few check marks on a form submitted in
1999, this litigation might have been avoided. In December of
1999, Defendant Henry Solomon, an attorney for Plaintiff
Atlanta Channel, Inc. (“ACI”), submitted a form
on ACI's behalf to the Federal Communications Commission
(“FCC”) without realizing that several key
questions on the form remained unanswered. Because the form
was incomplete, the FCC dismissed it, thereby blocking
ACI's ability to obtain a special license that would have
given it preference on the airwaves. Mr. Solomon filed a
motion with the FCC asking it to reverse its dismissal of the
form, but for twelve years the FCC sat on that motion. In the
intervening years, Mr. Solomon retired from the practice of
law. After several failed appeals of the FCC's dismissal,
ACI filed suit in this Court alleging that Mr. Solomon was
negligent when he filed the incomplete form, and now moves
for summary judgment as to Mr. Solomon's liability. In
his cross-motion for summary judgment, Mr. Solomon argues
that ACI cannot recover because its malpractice claim is
barred by the statute of limitations, because ACI was
contributorily negligent by failing to complete the form
itself, and because the far-reaching damage ACI now alleges
it suffered was not proximately caused by the submission of
the incomplete form. For the reasons set forth below, the
Court finds that neither party has met its burden for a
finding of summary judgment in its favor, and therefore
denies both motions.
FACTUAL AND PROCEDURAL BACKGROUND
a broadcast television business that owns and operates a low
power television (“LPTV”) station with the call
sign WTHC-LD in Atlanta, Georgia. Pl.'s Statement of
Material Facts Not in Dispute (“Pl.'s SMF”)
¶ 18, Pl.'s Mot. Partial Summ. J. (“Pl.'s
Mot.”), ECF No. 71-1; Def.'s Statement of Material
Facts Not in Genuine Dispute (“Def.'s SMF”)
¶ 1, Def.'s Mot. Summ. J. (“Def.'s
Mot.”), ECF No. 76-1. Through this license granted by
the FCC, ACI broadcasts “visitor information to hotels
in the Atlanta area.” Pl.'s SMF ¶¶ 19-20;
Def.'s Brief Supp. Mot. Summ. J. (“Def.'s
Brief”) at 4, ECF No. 76. From 1993 to 2009 and from
2016 to present, ACI has held the FCC license for this
channel; from 2009 to 2016, the license was assigned to Beach
TV Properties, Inc. (“Beach TV”). Pl.'s SMF
¶¶ 20-21. Both ACI and Beach TV are owned and
operated by Jud Colley and Toni Davis. Id.
1999, Congress enacted the Community Broadcasters Protection
Act (“CBPA”), 47 U.S.C. § 336(f), which
directed the FCC to award qualified LPTV licensees Class A
licenses granting them the same protection and status as full
power broadcast television stations in the event of
displacement from their assigned broadcast frequency.
Pl.'s SMF ¶¶ 23-24; Def.'s SMF ¶ 4.
ACI claims that its LPTV station met the qualification
criteria for a Class A license, as provided by 47 U.S.C.
§ 336(f)(2)(A). Pl.'s SMF ¶¶ 25-26.
Therefore, in December 1999, Mr. Colley worked with his
attorney Henry Solomon, who at the time was employed by the
Virginia law firm Haley Bader & Potts, to obtain a Class
A license for WTHC-LD, along with several LPTV stations owned
by Beach TV. Id. ¶¶ 7-8, 29-44.
order to obtain a Class A license for an LPTV station,
applicants must have completed and filed Statements of
Eligibility with the FCC by January 28, 2000. See 47
U.S.C. §336(f)(1)(B). The CBPA provided that
“[a]bsent a material deficiency, the [FCC would] grant
certification of eligibility to apply for class A
status.” Id. Therefore, in December 1999, Mr.
Colley “partially filled out and signed Statements of
Eligibility for five (5) LPTV licenses owned by Beach TV and
sent them to Mr. Solomon for review and filing with the
FCC.” Pl.'s SMF ¶ 31. Questions 3(a), 3(b),
3(c), and 4 remained incomplete on each form. Id.
¶ 32; Solomon Dep. 20:12-21:7, 21:16-21:20, Pl.'s
Mot., ECF No. 72-4. Mr. Colley claims that he sent the forms
to Mr. Solomon partially filled out because he “did not
know how to provide the appropriate answers to the
Qualification Questions on any of the Beach TV
Statements.” Pl.'s SMF ¶ 32; see also
Colley Dep. 99:13-103:3, 106:21-107:5, Pl.'s Mot., ECF
No. 72-2. Therefore, he “relied on Mr. Solomon to
provide the appropriate answers” to the questions he
left blank. Pl.'s SMF ¶ 32. A paralegal at the Haley
firm filled in the relevant parts of the forms, at which
point Mr. Solomon reviewed the forms and submitted them to
the FCC on December 28, 1999. Pl.'s SMF ¶¶
33-34. Around that time, Mr. Colley sent Mr. Solomon a
similarly partially filled out and signed form for ACI's
LPTV channel, and similarly relied on Mr. Solomon to complete
the form. Id. ¶¶ 35-36. However, Mr.
Solomon submitted this form to the FCC with the boxes for
Questions 3(a), 3(b), 3(c), and 4 left blank. Id.
¶¶ 37-39; see also Ex. A, Pl.'s SMF,
ECF No. 71-3. The form also contained the incorrect call sign
for the LPTV station. Solomon Dep. 24:18- 25:17, ECF No.
72-4. On March 6, 2000, Mr. Solomon switched employers from
the Haley firm to the D.C. firm Garvey, Schubert & Barer.
See Def.'s SMF ¶ 8.
2, 2000, the FCC's Mass. Media Bureau (“MMB”)
accepted Beach TV's Statements of Eligibility, and soon
after granted Beach TV's stations Class A licenses.
Pl.'s SMF ¶ 42. However, on June 9, 2000, the MMB
dismissed ACI's Statement because it was incomplete.
Id. ¶ 43. Mr. Solomon informed Mr. Colley of
the dismissal soon thereafter. See Colley Dep.
93:14-97:14, Def.'s Mot., ECF No. 76-3. Mr. Colley told
Mr. Solomon that they would “need to do everything
possible to get [the] Class A status” for the ACI
station. Pl.'s SMF ¶ 45. Therefore, on June 22,
2000, Mr. Solomon filed a Petition for Reconsideration of the
Dismissal with the Bureau, which included a correctly filled
out, amended Statement of Eligibility. Id. ¶
47. However, on November 20, 2000, the MMB denied the
Petition for Reconsideration because ACI's original
Statement of Eligibility had been “patently
defective.” Id. ¶ 49.
weeks later, on December 13, 2000, Mr. Solomon emailed Mr.
Colley about seeking further review of the dismissal with the
FCC, and explained that in the meantime, “it d[id] not
appear that the station [wa]s likely to suffer any harm as a
result of” the dismissal. Id. ¶¶
50-51. Mr. Colley agreed that for the time being, the station
was not at risk of displacement, but worried that at some
point in the future it could be. Id. ¶ 53.
Therefore, on December 20, 2000, Mr. Solomon filed an
Application for Review by the full FCC of the MMB's
denial of ACI's Petition for Reconsideration.
Id. ¶ 56. The Application languished for twelve
long years. It was ultimately denied on November 8, 2012.
Id. ¶ 57.
the first few years following the submission of the
Application, Mr. Solomon communicated with ACI regarding its
status, and in 2004 drafted a letter in support of the
Application from U.S. Representative John Lewis of Georgia to
be submitted to the FCC. Id. ¶¶ 58-60. The
last time Mr. Solomon communicated directly with Mr. Colley
regarding the Application was in 2008. Id. ¶
2008, Mr. Solomon began the process of winding down his
practice at the Garvey firm due to his advanced age.
See Ex. 25, Solomon Dep., Pl.'s Mot., ECF No.
72-5. The details regarding how he characterized this change
to Mr. Colley remain murky. Mr. Colley summarizes Mr.
Solomon's 2009 communications with him regarding this
“transition” as follows: that Mr. Solomon told
Mr. Colley that he would turn over responsibility for ACI and
Beach TV matters to Melodie Virtue, another partner at the
firm; that she would become the “front person”
for ACI and Beach TV's dealings with the FCC; that Mr.
Solomon would act “in the background” as a
“consultant”; that Mr. Solomon would remain in
Washington, D.C. and would maintain an office at the Garvey
firm; that he would continue to perform a limited amount of
work for the firm; and that he would continue to work on pro
bono matters. Pl.'s SMF ¶ 64. In his deposition, Mr.
Solomon said that he could not recall speaking with Mr.
Colley or Ms. Davis about his retirement, see
Solomon Dep. 108:2-17, 140:8-22, ECF No. 72-4, but now claims
that he never told Mr. Colley that he “would be the
back person regarding legal representation of ACI or any of
the other businesses owned by Colley.” 2d Solomon Decl.
¶ 8, Def.'s Opp'n, ECF No. 78-6.
December 11, 2009, Mr. Solomon forwarded an email to Mr.
Colley that contained an image of a “biker bar in
Florida.” See Ex. C, Pl.'s Mot., ECF No.
71-5. The image depicted three motorized scooters parked
outside of a convenience store. In the email, Mr. Solomon
told Mr. Colley, while referring to the photo: “Not me.
Staying in DC forever. Transition will be smooth and I will
be around to consult, etc.” Id. In response,
Mr. Colley joked, “Don't look close, they may have
our names on them.” Id. The parties have
provided no other documentation regarding how Mr. Solomon
informed Mr. Colley of his impending retirement. Mr. Colley
claims that the email “was the only written
communication by Mr. Solomon to Mr. Colley regarding his
‘transition' at the Garvey Firm.” Pl.'s
SMF ¶ 69.
2008 and 2011, Mr. Solomon took several steps to wind down
his practice. On July 1, 2010, his employment at the Garvey
firm was officially terminated. See Ex. 25, Solomon
Dep. Mr. Solomon relinquished his Virginia bar license in
2009 and his D.C. license in 2011. Def.'s SMF ¶ 19.
However, Mr. Solomon did not completely sever his
relationship with the Garvey firm upon his termination and
the relinquishment of his bar licenses. He continued to work
from his office at the firm several days a week, and
maintained a pro bono practice. Pl.'s SMF ¶¶
70, 73. Additionally, at least in ACI's case, he
continued to advise his former partners on their work before
the FCC. See, e.g., Ex. 41, Virtue Dep., Pl.'s
Mot., ECF No. 72-7.
February 2012, Congress passed the Spectrum Act, which Mr.
Colley worried might affect ACI's LPTV spectrum usage
rights. As such, he contacted Ms. Virtue, whom he believed he
had been told would be the “front person” for all
of ACI's dealings with the FCC, inquiring as to the
status of ACI's December 2000 Application for Review.
Pl.'s SMF ¶¶ 85-87. Up until Mr. Colley's
email, Ms. Virtue had been unaware that ACI had an
Application for Review pending before the FCC. Id.
¶¶ 88-89. The next morning Ms. Virtue emailed Mr.
Solomon asking if he knew whether the FCC had ever issued a
decision regarding the Application for Review (which she
referred to as a petition for reconsideration), and after he
answered that it had not issued a decision, she confirmed
that it was still a “live” Application.
See Ex. E, Pl.'s SMF., ECF No. 71-7.
further inquiry, Ms. Virtue learned that the Garvey firm did
not have a complete record of the Application, and the FCC
had “no records in its Public File regarding the
Application for Review.” Pl.'s SMF ¶¶
90-91. Therefore, Ms. Virtue reconstructed the record for the
Application for Review using documents provided by Mr. Colley
and forwarded the reconstructed record to the FCC. She
informed Mr. Colley that she was “in communication with
Mr. Solomon about the Application for Review.”
Id. ¶ 94.
Ms. Virtue had “notified the FCC in writing [that] she
would be the contact person for other matters handled by Mr.
Solomon for Beach TV, ” which at that point was the
licensee for the relevant LPTV station, she did not notify
the FCC in writing that she would be the contact person for
the Application for Review, nor did she substitute as counsel
of record. Id. ¶¶ 95-100. However, she
immediately began strategizing, with the help of Mr. Solomon,
on how to obtain a favorable decision on the Application for
Review for Beach TV. On March 23, 2012, Mr. Solomon emailed
Ms. Virtue from his personal email account to brainstorm,
writing “Do you think that a Supplement to the
Application for Review might be worthwhile-including Cong.
Letter and more facts? One reason is that now that the staff
has the file, it might act quickly. Also, arrange meeting
with Barbara and bring Jud?” Ex. F, Pl.'s Mot., ECF
No. 71-8. Ms. Virtue responded that “Jud's already
trying to get another congressional letter and I've
recommended Jud come back up for FCC meetings with the
Commissioners. A supplement might be a good idea.”
Id. In response, Mr. Solomon explained,
“I'm just trying to head off a quick decision
before we exhaust all other options. Based on my experience
with Honig, I think meetings with commissioners as a first
resort isn't advisable. I'd set something up with
Barbara and Joyce first-with Jud.” Id. Ms.
Virtue believes that after that exchange she likely
communicated to Mr. Colley that “Henry [Solomon] was
giving [her] some ideas on how to get the FCC to act on that
pending application for review, and to bring it full circle
with the staff, based on the fact that it had been pending
for 12 years.” Virtue Dep. 94:14-95:12, Pl.'s Mot.,
ECF No. 72-6.
Colley went on to lobby the FCC for an adjudication in his
favor, using lobbyists not employed by the Garvey firm.
Pl.'s SMF ¶ 108-09. One of those lobbyists was
Benjamin Perez, an engineer who is also a licensed attorney.
Colley Dep. 147:8-15, ECF No. 76-3; see also Ex. 10,
Def.'s Mot., ECF No. 76-12. During that time, the FCC
contacted Mr. Solomon requesting a copy of ACI's
Statement of Eligibility. Pl.'s SMF ¶ 112. Mr.
Solomon forwarded the request to Ms. Virtue, who supplied the
FCC with a copy of the statement. Id.
November 8, 2012, the FCC denied the Application for Review,
explaining that ACI's Statement of Eligibility had a
“material deficiency” because it did not include
answers to key questions. See Ex. G, Pl.'s SMF,
ECF No. 71-9. The next day, Ms. Virtue sent a copy of the
denial to Mr. Solomon for his review, and told him that she
planned to file a Petition for Reconsideration with the FCC.
Pl.'s SMF ¶¶ 118-19. Mr. Solomon offered to
provide her with “input” and “wisdom”
as she drafted the petition. Id. ¶ 120. On
November 16, 2012, Mr. Solomon emailed Ms. Virtue with his
“preliminary thoughts” on the denial and the
types of arguments that could be made in the Petition for
Reconsideration. In his email, he included a phrase
(“the law favors repose”) that Ms. Virtue liked
so much that she included it in the final petition.
Id. ¶¶ 121-123, 126. In his email, he also
used the phrase “we” when describing strategy for
the case. See Ex. H, Pl.'s SMF, ECF No. 71-10.
November 21, 2012, Ms. Virtue emailed Mr. Colley and Ms.
Davis discussing her recommendations for the Petition for
Reconsideration. See Ex. 43, Virtue Dep., Pl.'s
Mot., ECF No. 72-7. In the email, she also responded to a
previous email from Ms. Davis in which Ms. Davis expressed
her belief that this whole situation had arisen because of a
clerical error by the Haley firm. Id. Ms. Virtue
explained that it would behoove Beach TV to consider engaging
independent counsel to consider whether Beach TV and the
Garvey firm had a conflict of interest regarding the Petition
for Reconsideration. Id. She explained that Beach TV
had several options as it assessed whether a conflict
existed. Id. It “could decide to have Garvey
Schubert Barer file the Petition for Reconsideration, [it]
could transfer this matter to independent counsel, or [it]
could engage another firm with expertise in administrative
litigation to serve as co-counsel with Garvey Schubert Barer
and complement [Ms. Virtue's] background in
communications regulation.” Id. Beach TV and
ACI retained the law firm Balch & Bingham to determine
whether there was a conflict, but ultimately chose to proceed
with the Garvey firm as counsel for the Petition.
See Ex. 54, Virtue Dep., Pl.'s Mot., ECF No.
finishing a draft of the Petition, Ms. Virtue sent a copy to
Mr. Colley and Ms. Davis, and also left a copy on Mr.
Solomon's chair in his Garvey firm office for him to
review. See Ex. J, Pl.'s SMF, ECF No. 71-12; Ex.
K, Pl.'s SMF, ECF No. 71-13. It appears that Mr. Solomon
was in the office that day, because an hour and a half later,
he responded to Ms. Virtue with comments. In those comments,
Maybe a short para. saying that what the FCC did to us vs.
its flexibility vis-a-vis other filers, borders on disparate
treatment. See Melody Music, Inc. v. FCC (a couple of cases
followed and relied on MM doctrine. Similarly-situated
parties can't be treated differently. Granted network
stations though anti-trust violations/deception, but denied
AM renewal where also deceptive practices.) Melody Music v.
FCC, 345 F.2d 730 (DC Cir. 1965). I haven't re-read the
McElroy Electronics case, but I think MM was cited. 990 F.2d
1351 (DC Cir. 1993). In any event, MM has been cited in a
number of subsequent cases that you can easily find.
Jud's Declaration excellent.
Ex. K, Pl.'s SMF. Seven minutes later, he sent another
email, which read: “Also see fn. 13 White Mtn. Beg. Co,
Inc. v. FCC 598 F.2d 274 (1998). Did not follow MM, but
distinguished. I think maybe we're closer to MM than was
appellant in WMtn. I will be re-reading Pet. For
Recon.” Id. Ms. Virtue incorporated an
analysis of the Melody Music case into the final
Petition for Review. Pl.'s SMF ¶ 130. Mr. Colley
recalls Ms. Virtue informing him at the time that she was
consulting with Mr. Solomon as she prepared the Petition for
Review. Colley Dep. 177:21-178:8, ECF No. 72-2. Ms. Virtue
does not recall telling Mr. Colley that Mr. Solomon was
involved, but she “assumes” that she did. Virtue
Dep. 166:18-167:2, ECF No. 72-6. Ms. Virtue submitted the
Petition on December 7, 2012. Pl.'s SMF ¶ 133.
October 7, 2014, the MMB denied the Petition for
Reconsideration because “[t]he Atlanta Channel's
initial Statement of Eligibility lacked any information
supporting eligibility, and its corrected statement was
untimely.” Ex. 53, Virtue Dep., ECF No. 72-7. In
response to this denial, Ms. Virtue emailed Mr. Colley and
Ms. Davis explaining the process for filing an appeal of the
decision to the D.C. Circuit. See Ex. 54, Virtue
Dep., ECF No. 72-7. She also explained that it would be wise
at that juncture to again consult with outside counsel
regarding whether Beach TV and the Garvey firm had a conflict
of interest that could affect the appeal. Id.
TV ultimately decided to file an appeal with the D.C. Circuit
using a different law firm, but continued to retain the
Garvey firm for other matters. The D.C. Circuit affirmed the
FCC denial of the Petition for Review on September 23, 2015.
See Beach TV Props., Inc. v. FCC, 617 Fed. App'x
10 (D.C. Cir. 2015). One month later, on October 26, 2015,
Beach TV and ACI filed this suit against Mr. Solomon, the
Haley firm, and the Garvey firm. See generally
Compl., ECF No. 1. At that point, Ms. Virtue advised Mr.
Colley that the Garvey firm could no longer represent ACI and
Beach TV due to the conflict of interest posed by the
lawsuit. Pl.'s SMF ¶ 151.
three defendants moved to dismiss ACI and Beach TV's
First Amended Complaint. See ECF Nos. 24, 25, 27.
The Court granted the Garvey and Haley firms' motions,
and granted in part and denied in part Mr. Solomon's.
See Beach TV Props., Inc. v. Solomon, No. 15-cv-
1823, 2016 WL 6068806 (D.D.C. Oct. 14, 2016). It also
dismissed claims by Beach TV for lack of standing.
Id. With only one active claim remaining (ACI's
claim against Mr. Solomon for his submission of the defective
form) ACI filed a motion to amend its complaint a second
time, which the Court granted in part and denied in part.
See Beach TV Props., Inc. v. Solomon, 254 F.Supp.3d
118 (D.D.C. 2017). Following the Court's order, the case
now contains two surviving claims of legal malpractice: one
against Mr. Solomon for preparing and filing the incomplete
Statement of Eligibility, and one against Ms. Virtue for
failing to advise ACI about, among other things, potential
conflicts and ...