UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CNSP, INC., d/b/a NMSURF, Plaintiff - Appellant,

v. CITY OF SANTA FE, Defendant - Appellee. No. 18-2041 (D.C. No. 1:17-CV-00355-KG-SCY) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, McKAY , and MATHESON , Circuit Judges.

________________ _________________ CNSP, Inc., d/b/a NMSURF, sued the City of Santa Fe for not ac ting on its application seeking access to c onstruct an intrastate telecommu nications wireline in a public right-of-way and the City’s actions in administering its telecommunications ordinances. The federal district court concluded that NMSURF f ailed to state a claim for relief and dismissed the complain t. Exercising appellate juris diction under 28 U.S.C. § 1291, we affirm in part, reve rse in part, and remand for furt her proceedings.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 14, 2019
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND In January 2015, NMSURF applie d for a telecommunications franc hise with the City of Santa Fe to construct i nfrastructure in a public right- of-way, 1 specifically, an “intrastate wireline Fiber Optic Network.” Aplt. App. at 17. A complete application typically leads to a negotiated franchise agreement that is lat er adopted by a city ordinance. See City of Santa Fe, N.M., Code of O rdinances, § 27-2.4 (2016). A doption of the franchise agreement subject s the franchisee to a two per cent infrastructure maintenance fee, so long as the fee is not “imposed in any circ umstances . . . [that] would violate the Constitution or statu tes of the United States.” Id. § 27-2.5(A). In March 2017, NMSURF sued the City in federal district court, alleging that the City “ha[d] delayed and prohib ited [NMSURF’s] application for [ public right-of-way access], thereby harming [NMSURF’s] intrastate wireline busines s.” Aplt. App. at 9-10. While NMSURF’s application was pending, the City allegedly gran ted other telecommunications companies ac cess to a public right-of-way an d did not require them to pay internet access fees. NMSUR F claimed that the City’s ac tions violated 47 U.S.C. § 253’s guarantee of open and non- discriminatory access to publ ic rights-of-way for the provision of telecommunications s ervices. The City moved to di smiss, arguing that NMSURF had failed to ple ad a plausible claim because § 253 does not provide a private

1 Under the City’s telecommunica tions ordinances, the term “‘Pub lic right-ofway’ has the meaning of Section 3-1-2(M) NMSA 1978,” City of Sa nta Fe, N.M., Code of Ordinances, § 27-2.3 (20 16) (italics omitted), which re ferences “any thoroughfare that can accommodate pedestrian or vehicular traff ic, is open to the public and is under the control of the municipality,” N.M. Stat . Ann. § 3-1-2(M).3 cause of action. The district c ourt construed the motion as se eking judgment on the pleadings and granted it. 2 NMSURF appealed. While this appeal was pending , the City, on May 9, 2018, passe d an ordinance granting NMSURF a teleco mmunications franchise. See City of Santa Fe, N.M., Ordinance No. 2018 -13 (May 9, 2018).
II. DISCUSSION
A. Legal Background “We review a district court’s gr ant of a motion for judgment o n the pleadings de novo, using the same standard t hat applies to a Rule 12(b)(6 ) motion.” Colony Ins. Co. v. Burke , 698 F.3d 1222, 1228 (10th Ci r. 2012) (internal quotation mark s omitted). “[A] complaint must c ontain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. We assume the factua l allegations are true and ask whether it is plausible that th e plaintiff is entitled to relie f.” Bixler v. Foster , 596 F.3d 751, 756 (10th Cir. 2010) (bracke ts, citation, and internal quo tations marks omitted); see Ashcroft v. Iqbal , 566 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombley , 550 U.S. 544, 570 (2007).

2 NMSURF also claimed that the C ity violated the Equal Protectio n Clauses of the U.S. and New Mexico Constitu tions and the Anti-donation Cla use of the New Mexico Constitution. NMSURF’s f ederal equal protection claim i s not before us because NMSURF does not contest its dismissal by the district c ourt. See Coleman v. B-G Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997) (“Issues not raised in the opening brief are deemed abandoned or waived.”). As for NMSURF’s claims under the New Mexico C onstitution, the district court de clined to exercise supplemental jurisdiction over th em after dismissing NMSURF’s f ederal claims.4 Section 253, entitled “Removal of barriers to entry,” is part of the Telecommunications Act of 1996 (“ TCA”) and preempts local laws that “have the effect of prohibiting the ab ility of any entity to pr ovide any interst ate or intrastate telecommunications service.” 47 U.S.C. § 253(a). Despite that prohibition, local governments retain the authorit y “to manage the public rights-o f-way [and] to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-o f-way on a nondiscriminatory basis, if the compensation required is public ly disclosed by such government.” Id. § 253(c). Thus, “section 253(a) s tates the general rule [of p reemption] and section 253(c) provides th e exception—a safe harbor functio ning as an affirmative defense—to that rule.” Level 3 Commc’ns, L.L.C. v. City of St. Louis , 477 F.3d 528, 532 (8th Cir. 2007). Subsection (d) a uthorizes the Federal Communi cations Commission (FCC) to determine whether a “lo cal government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a)” and to then “preempt the enforcement of such statute, re gulation, or legal requirement t o the extent necessary to correct such violation or inconsistency.” Id. § 253(d).
B. Analysis
1. No Private Right of A ction for Damages NMSURF seeks relief under § 253(c ) through an implied private r ight of action brought under 42 U.S.C. § 1983. But “where the text and struct ure of a statute provide no indication that Congress intends to create new individual ri ghts, there is no basis for a private suit, whether under § 1983 or under an implied right of action.” Gonzaga Univ. v.5 Doe , 536 U.S. 273, 286 (2002). In Qwest Corp. v. City of Santa Fe , 380 F.3d 1258, 1265 (10th Cir. 2004), this court held that “not hing in the text or structure of § 253 indicates a [ ] [congressional] intention to create a private right.” In s o holding, we applied Gonzaga ’s test for discerning a privat e right of action—whether a stat ute grants any “‘private rights to any identifiable class’” Id . (quoting Gonzaga , 536 U.S. at 284). We acknowledged that the Supreme Court said in Gonzaga that it had been “reluctan[t] to infer congressional intent to cr eate a federal right” in Spendi ng Clause legislation. Qwest Corp. , 380 F.3d at 1265 n.2. Thus, w e “assume[d], without deciding, that Gonzaga provides the correct test.” Id. Seizing upon that assumption, NMSURF argues that the correct t est for finding whether § 253(c) authorizes a private right of action is Cort v. Ash , 422 U.S. 66, 78 (1975) (identifying four factors re levant to deciding “whether a private remedy is implicit in a statute not expressly providing one”). 3 The Sixth Circuit has said that Cort supports finding a private right of action in § 253(c). TCG Detroit v. City of Dearborn , 206 F.3d 618, 623-24 (6 th Cir. 2000); but cf. Superior Commc’ns v. City of Riverview , 881 F.3d 432, 444 (6th Cir. 2018) (“hold[ing] that there is no private c ause of action available under § 253(a)”). Nonetheless, N MSURF’s argument fails to pers uade us.

3 The Cort factors are (1) “the plaintiff [i s] one of the class for whose especial benefit the statute was enacted” ; (2) “there [is] an[ ] indicat ion of legislative intent, explicit or implicit, either to c reate such a remedy or to deny one[ ]”; (3) “it [is] consistent with the underlying pu rposes of the legislative sche me to imply such a remedy for the plaintiff”; and (4 ) “the cause of action [is] on e traditionally relegated to state law, in an area basicall y the concern of the States, s o that it would be inappropriate to infer a cause o f action based solely on federa l law.” 422 U.S. at 78 (internal quotation marks omitted).6 First, “the critical inquiry is wh ether Congress intended to cr eate a private right of action.” Walls v. Wells Fargo Bank, N.A. , 276 F.3d 502, 508 (9th Cir. 2002); see also Casas v. Am. Airlines, Inc. , 304 F.3d 517, 522 (5th Cir. 2 002) (stating that congressional intent is the “touchstone of the Cort analysis”). In Qwest , this court assessed whether Congress intended to supply a private right of action anywhere in § 253, and it found no such intent. 380 F.3d at 1265- 67. We are bound by that determ ination, whether it was derived from a Cort or a Gonzaga analysis. See Tootle v. USDB Commandant , 390 F.3d 1280, 1283 (10th Cir. 2004) (“We a re bound by the precedent of prior panels absent en banc reconsideration or a supers eding contrary decision by the Supreme Court.” (internal quotation marks omitted)). Second, in City of Rancho Palos Verdes v. Abrams , 544 U.S. 113 (2005), the Supreme Court cited Gonzaga in a TCA case when it addressed whether Congress intended to create a private ri ght of action to enforce limitat ions on a local government’s regulation of antenna towers. See id. at 120 (observing that “to sustain a § 1983 action, the plaintiff must demonstrate th at the federal statute creates an individually enforceable right in the class of beneficia ries to which he belongs”). The Supreme Court’s decision validates Qwest ’s reliance on Gonzaga in the context of § 253. Third, since City of Rancho Palos Verde was decided in 2005, the Eighth and Second Circuits have decided that § 253 does not create a priva te right of action. See Spectra Commc’ns Grp., LLC v. City of Cameron , 806 F.3d 1113, 1 119 (8th Cir. 2015) (applying Gonzaga and “conclud[ing] that the text of § 253 does not indicate tha t7 Congress intended to create a private right of action”); NextG Networks of N.Y., Inc. v. City of N.Y. , 513 F.3d 49, 52-53 (2d Ci r. 2008) (same).
2. Preemption Claim and Equitable Relief In the district court, NMSURF argued that § 253 preempts vario us parts of the City’s telecommunications-franchi se ordinance. Aplt. App. at 4 2-45. Citing § 253(d) and Qwest , the district court concluded th at only the FCC has the author ity to declare preemption, so NMSURF did not s tate a claim on this ground. See 47 U.S.C. § 253(d) (requiring the FCC to preempt a ny statute, regulation, or legal requirement that violates subsection (a) or (b)). Contesting this ruling on appeal, NMSURF argues correctly in i ts opening brief that this court in Qwest held that “[a] party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action.” 380 F.3d at 1266; see, e.g. , Sprint Telephony PCS, L.P. v. Cty. of San Diego , 543 F.3d 571, 574-75, 580-81 (9 th Cir. 2008) (en banc). The Supreme Court, however, lat er clarified that no “implied r ight of action [is] contained in the Supremacy Clause.” Armstrong v. Exceptional Child Center, Inc. , 135 S. Ct. 1378, 1384 (2015). Rather, t he power of federal courts to enjoin state laws that violate federal law arises from “the creation of courts of equi ty.” Id. Thus, “federal courts may in some circumstan ces grant injunctive relief agains t state officers who are violating, or planning to v iolate, federal law.” Id. 4 Those circumstances include whether

4 NMSURF’s complaint did not nam e any state officers or City off icials as defendants.8 Congress has expressly or implic itly precluded private enforcem ent of federal law. Id. at 1385. Moreover, in Safe Streets Alliance v. Hickenlooper , 859 F.3d 865 (10th Cir. 2017), this court held in a divided opin ion that to maintain an equita ble cause of action to “enforce [a federal statute’ s] preemptive effects,” id. at 903, the plain tiff must plausibly allege that the statute confer s on the plaintiff a federal subs tantive “right of her or his own to vindicate,” id. at 902. 5
Neither the district court nor t he parties discussed or even c ited to Armstrong or Safe Streets Alliance . We therefore asked the parties to address these cases in supplemental briefs as to whether NMSURF may proceed with an eq uitable preemption claim. Having studied the supplemental briefs, 6 we remand this issue for NMSURF to amend its complaint. In its orde r dismissing the complaint, th e district court (a) simply determined that a court cannot e ntertain an equitable preemptio n claim because subsection (d) of the statute men tions only the FCC’s preemptio n authority, 7 and (b) did

5 In a concurring opinion, Judge H artz found “no language in Armstrong stating that the Court should ‘fi rst’ (or ever, when examining the federal courts’ equity power) concern itself with whether the party seeking inj unctive relief alleged any federal substantive right.” Id. at 916.

6 We also received an amicus brie f from CenturyLink, CTIA, and U STelecom.

7 See 47 U.S.C. § 253(d) (“If . . . th e Commission determines that a State or local government has permitted or imposed any statute, regulati on, or legal requirement that violates subsec tion (a) or (b) of this section , the Commission shall preempt the enforcement of such s tatute, regulation, or legal r equirement to the extent necessary to correct such violation or inconsistency.”).9 not analyze the complaint’s alle gations or whether they stated a claim under Armstrong and Safe Streets Alliance

. 8 To enable meaningful review of whether NMSURF has stated an equitable preemption claim, t he allegations in the complaint should be updated and revised in light of (a) Armstrong and Safe Streets Alliance , and (b) NMSURF’s having been awarded a franchise. Examination of the complaint s upports these points. The factu al allegations describe the provisions of Chapt er 27 of The City of Santa Fe C ity Code, which governs telecommunications facilities. A plt. App. at 11-13. The compl aint then alleges three causes of action. Only the firs t is at issue on this appeal. 9 It is titled “Violation of Telecommunications Act – Removal of Barriers to Entry.” Id. at 14. It alleges that the City “has not acted on NMSURF’s application.” Id. It describes specific provisions of Chapter 27, including § 27.2.5(A ), which requires a 2 percent f ee “for all services

8 Although the district court did not analyze NMSURF’s equitable preemption claim based on the relevant case law, it nevertheless viewed th e complaint as containing such a claim. The cla im’s presence is evident from “read[ing] [the complaint] as a whole” and “expa nsively construi ng [the complai nt].” Zokari v. Gates , 561 F.3d 1076, 1085 (10th Cir. 2009). See, e.g. , Aplt. App. at 10 (complaint’s prefatory allegation that “[t]h e court should pre-empt and inva lidate” the City’s telecommunications-franchise ordinance); id. at 16 (complaint’s § 253 claim for relief, which alleges that the City’s telecommunications-franch ise ordinance “should be invalidated and or pre-empted”); id. at 19-20 (complaint’s prayer for declaratory and injunctive relief, which alle ges that the City’s telecommun ications-franchise ordinance is “pre-empted, inva lid, and . . . contrary to the Co nstitution, [t]he [TCA], and laws of the United States”).

9 The second cause of action allege s a violation of equal protec tion under the Fifth Amendment and a violation of the New Mexico Constitution. The third also alleges a violation of the New Mexico Constitution.10 terminated to an address in the City.” Id. at 15. And it alleges rep eatedly that Chapter 27 “has the effect of prohibiting entry.” Id. at 16. Although the complaint states th at “Defendants’ [sic] Chapter 2 7 City Code violations cause ongoing harm to NMSURF and should be invalidat ed and or preempted,” id. , the first cause of action emphas izes that the City’s administ ration of Chapter 27 has prevented NMSU RF from access to a public right-o f-way. And although NMSURF states at the beginning a nd end of the complaint that it wants the court to preempt certain sections of Chapt er 27, it is not clear whether this remedy was requested to enable NMSURF to obtain a fra nchise, which the City now has granted, and it is not clear whether or to what extent its preemption challenge is moo t. For these reasons, the district court’s dismissal of NMSURF’s claim for preemption is not amenable to appellate review, and the matter must be remanded for NMSURF to clarify its claim. The case also must be remanded for the district court to address an even more fundamental question—whether the federal c ourts have jurisdiction over NMSURF’s putative equitable preemption claim. We turn to that question next. 10
3. Potential Mootness Issue Because the City granted a franchi se to NMSURF while this appe al was pending, and because the primary concern o f the original complaint was t he City’s failure to act on

10 We recognize that the district court denied NMSURF’s request f or leave to amend the complaint b ecause NMSURF did not file a formal motion or a proposed amended complaint. Aplt. App. a t 77-78. We do not question th e basis for that ruling. Our remand for NMSURF to file an am ended complaint is premised on the parties’ and the district court’s failure to address relevant case law on eq uitable preemption and on factual developments rais ing mootness concerns.11 NMSURF’s franchise application, the award of the franchise rais es a mootness concern. Although we asked the parties to address this concern in their supplemental briefs, they paid scant attention to this issu e. NMSURF did c ontend in its reply brief that despite having been granted a franchise, the City has set “un-equal fee s,” obtained “a three year plus competitive edge over NMS URF . . . by creating its own net work,” avoided “pay[ing] any charges for revenu es generated under its municipa l network,” and failed to “institute policies, practices, a nd procedures to ensure compli ance with [public right of way] applications.” Aplt. Reply Br. at 4, 12 (internal quotati on marks omitted). As with the question of whether t he complaint states a claim, a nd despite factual assertions in the reply brief, we again find the complaint inad equate to meaningfully assess the mootness issue. The d istrict court on remand, with the benefit of an updated amended complaint, should dete rmine whether the City’s recent g rant of a telecommunications franchise to NM SURF has mooted NMSURF’s equi table preemption claim. See Restoration Risk Retention Grp. v. Gutierrez , 880 F.3d 339, 342 (7th Cir. 2018) (remanding for a mootness dete rmination where “intervenin g amendments to [a state] statute [may h ave] render[ed] th[e] litigation moot”); Grimm v. Gloucester Cty. Sch. Bd. , 869 F.3d 286, 290 (4th Cir. 2 017) (remanding for a mootness d etermination in light of intervening events “re quir[ing] factual development of the record” (internal quotation marks omitted)).
III. CONCLUSION We affirm the district court’s dismissal of NMSURF’s § 253 dam ages claim. We reverse the dismissal of NMSURF’s preemption claim for equitabl e relief, and we12 remand with instructions to orde r NMSURF to file an amended com plaint and for further proceedings consistent with this Order and Judgment. 11

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

11 If the district court on remand determines that NMSURF has ple d a plausible equitable preemption claim, not mooted by the City’s recent gra nt of a franchise, the district court will need to revis it NMSURF’s state law claims, which were dismissed due to the lack of an attendant f ederal jurisdiction claim.