Full opinion text
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE In this federal and state antitrust action, Puerto Rico Telephone Company, Inc. (PRTC) claims that San Juan Cable Company LLC d/b/a OneLink Communications (OneLink) violated antitrust laws by conducting “sham” litigation over a period of four years, which PRTC contends delayed its entry into the competitive market. In view of the record and Supreme Court caselaw, the Court concludes that under Federal Rule of Civil Procedure 56, OneL-ink’s cross-motion for summary judgment is granted, and PRTC’s partial motion for summary judgment is denied on Noerr-Pennington immunity. I. BACKGROUND A. Procedural History On November 22, 2011, PRTC filed a complaint against OneLink, alleging in two counts that OneLink violated Sections 2 and 3 of the Sherman Act, 15 U.S.C. §§ 2-3, and in two counts that OneLink violated the corresponding Puerto Rico Anti-Monopoly Act, P.R. Laws Ann. 10, § 260. Compl. ¶¶ 7, 61-92 (ECF No. 1). On December 16, 2011, PRTC filed an amended complaint containing the same alleged violations of federal and state antitrust law. Am. Compl. ¶¶ 7, 64-95 (ECF No. 11). As pertains to this Order, PRTC alleges that OneLink “embarked on a course of conduct designed to thwart, or at a minimum delay, PRTC’s entry into OneLink’s markets” by “hijacking of Board proceedings, numerous unsuccessful motions to disqualify one of the commissioners, and the filing and vigorous prosecution of multiple objectively baseless lawsuits in both state and federal court — every one of which (with the exception of the most recent attack which has not yet been ruled upon by the court) was resolved against OneLink.” Id. ¶ 4. On January 24, 2012, OneLink filed a motion to dismiss PRTC’s Amended Complaint. Def.’s Mot. to Dismiss Pl.’s Am. Compl. (ECF No. 22) (Mot. to Dismiss). PRTC filed its opposition to OneLink’s motion to dismiss on February 24, 2012, and OneLink replied on March 9, 2012. Pl.’s Opp’n to Def.’s Mot. to Dismiss Pl’s Am. Compl. (ECF No. 23); Def.’s Reply in Further Support of Its Mot. to Dismiss Am. Compl. (ECF No. 25). On August 10, 2012, Judge Gelpi denied OneLink’s motion to dismiss, and subsequently affirmed his decision on OneLink’s motion for reconsideration on September 13, 2012. Opinion and Order (ECF No. 30) (First Opinion and Order)-, Opinion and Order (ECF No. 45) (Second Opinion and Order). Judge Gelpi also denied OneLink’s request for interlocutory appeal to the First Circuit. Second Opinion and Order. On October 5, 2012, OneLink answered the Amended Complaint, denying its essential allegations and asserting nine affirmative defenses. Answer to Am. Compl. (ECF No. 50) (Answer). After nearly a year of discovery, OneL-ink filed a motion for summary judgment, asserting that as a matter of law that it did not cause the injury that PRTC alleged as the basis for its antitrust claim. Def.’s Mot. for Summ. J. (ECF No. 198). The Court ruled on this motion, concluding that OneLink was entitled in part to summary judgment for the events that fell within the scope of Noerr-Pennington immunity, and for the time periods that did not raise a genuine dispute of material fact. Order Granting in Part and Den. in Part Def.’s First Mot. for Summ. J. (ECF No. 323) (First Order on Summ. J.). The Court otherwise denied OneLink’s motion for summary judgment. Id. PRTC filed a motion for partial summary judgment with supporting statement of material facts on December 23, 2013. Pl.’s Mot. for Partial Summ. J. on Def.’s Affirmative Defense under the Noerr-Pen-nington Doctrine (ECF No. 246) (Pl.’s Mot,); Pi’s Supporting Statement of Material Facts (ECF No. 247) (PSMF). On December 24, 2013, PRTC filed unredact-ed versions of the motion for summary judgment, supporting statement of material facts, and exhibits. (ECF No. 250). On February 14, 2014, OneLink responded to PRTC by filing an opposition to PRTC’s summary judgment motion, a cross-motion for summary judgment, a response to PRTC’s statement of material facts, and a cross-statement of material facts in support of its cross-motion for summary judgment. Def.’s Opp’n to PI’s Mot. for Partial Summ. J. and Def.’s Cross Mot. for Summary J. (ECF No. 261) (Def.’s Opp’n and Cross Mot.); Def.’s Response to Pi’s Statement of Material Facts supporting PI. ’s Mot. for Partial Summ. J. (ECF No. 262) (DRPSMF); Def. ’s Cross-Statement of Undisputed Material Facts in support of Def.’s Cross-Mot. for Summ. J. (ECF No. 263) (DSMF). OneLink also filed unredact-ed versions of its opposition to PRTC’s summary judgment motion, cross-motion for summary judgment, response to PRTC’s statement of material facts, and cross-statement of material facts in support of its cross-motion for summary judgment. (ECF No. 267). On March 14, 2014, PRTC filed its opposition to OneLink’s cross-motion for summary judgment, as well as its reply in support of its motion for partial summary judgment. Pi’s Opp’n to Def.’s Cross Mot. for Summ. J. and Reply in Supp. of PI. ⅛ Mot. for Partial Summ. J. on Def. ⅛ Affirmative Defense under the Noerr-Penning-ton Doctrine (ECF No. 272) (Pi’s Opp’n and Reply). PRTC also filed an opposition to OneLink’s cross-statement of material facts, additional facts in support of PRTC’s initial statement of material facts, and a reply to OneLink’s response to PRTC’s statement of material facts supporting their motion for partial summary judgment. Pi’s Opposing Statement of Material Facts (ECF No. 273) (PRDSMF; PSAMF); Pi’s Reply to Def.’s Resp. to Pi’s Statement of Material Facts Supp. Pi’s Mot. for Partial Summ. J. (ECF No. 274) (Pi’s Reply). In addition, PRTC filed an unredacted version of its motions and statement of material facts. (ECF No. 276). On March 28, 2014, OneLink filed a reply brief in support of its cross-motion for summary judgment and a reply to PRTC’s statement of additional facts in support of its opposition to OneLink’s cross motion for summary judgment. Def.’s Reply Br. in Supp. of its Cross-Mot. for Summ. J. (ECF No. 282) (Def.’s Reply); Def.’s Reply to Pi’s Statement of Additional Facts in Supp. of Pi’s Opp’n to Def.’s Cross Mot. for Summ. J. (ECF No. 283) (DRPSAMF). OneLink also filed un-redacted versions of these memoranda on March 28, 2014. (ECF No. 286). On April 7, 2014, PRTC filed a redacted and unre-dacted surreply. Pi’s Surreply to Def.’s Cross-Mot. for Summ. J. (ECF No. 294) (PI. ’s Surreply), (ECF No. 296). On December 4, 2014, Judge Gelpi re-cused himself from presiding over this case, and, in accordance with a directive from Chief Judge Aida M. Delgado-Colon, the case was to be reassigned to a visiting judge. Order (ECF No. 305). Notice of Judge Assignment (ECF No. 307). On January 26, 2015, the case was reassigned to this Judge. Notice of Judge Assignment (ECF No. 307). The Court held oral argument on the cross-motions for summary judgment on May 31, 2016. Entry (ECF No. 315); Tr. of Proceedings (ECF No. 319) (Tr.). B. Factual Background, 1. PRTC’s First Franchise Application In February 2008, a PRTC affiliate (Co-qui.net) filed a video franchise application, instituting a franchise proceeding in the Telecommunications Regulatory Board of Puerto Rico (TRB or the Board). DSMF ¶ 1; PRDSMF ¶ 1. On May 12,2008, OneL-ink filed a motion with the TRB requesting intervention in and a stay of PRTC’s first franchise proceedings; OneLink’s motion stated: We know that this is not an adversary proceeding and that section 8.7 of the Board’s Regulations on Practice and Procedure do not apply, however we believe the use of the term “intervention” is appropriate since OneLink could be adversely affected by this proceeding and it can help the Board develop a more complete record. PSMF ¶¶ 33, 41, 43, 69; DRPSMF ¶¶ 33, 41, 43, 69; DSMF ¶ 2; PRDSMF ¶2. OneLink did not know whether intervenor status would have given it the right to view confidential business documents PRTC submitted to the TRB.- PSAMF ¶ 33; DRPSAMF ¶33. On May 21, 2008, the TRB denied OneLink’s request to intervene and stay the proceeding. PSMF ¶ 44; DRPSMF ¶44. OneLink’s existing cable franchises were not at issue and were expressly nonexclusive (i.e., the granting of a competing franchise was clearly contemplated in OneLink’s own franchise agreements). PSMF ¶ 42; DRPSMF ¶ 42. OneLink submitted comments and information to the TRB before its hearing on September 26, 2008 regarding PRTC’s franchise application, and OneLink cross-examined witnesses at the hearing. PSMF ¶ 45; DRPSMF ¶ 45. At that hearing TRB Commissioner Aguirre stated: “We cannot guarantee here to the other companies that are not, strictly speaking, a party ... that there will be a second opportunity to examine [witnesses] as [OneLink] requests.” DSMF ¶ 8; PRDSMF ¶ 3. At the October 10, 2008 hearing in the first franchise proceeding, TRB Commissioner Aguirre stated: “[PRTC’s] petition is presumed to have been submitted in good faith ... not contrary to the public interest ... not against the interests of the consumer.... All of these assumptions, to this date, have been defeated or violated by the facts.” DSMF ¶4; PRDSMF ¶ 4; PSMF ¶ 32; DRPSMF ¶32. The TRB denied PRTC’s February 2008 video franchise application on October 29, 2008, and published its opinion on November 12, 2008. PSMF ¶ 47; DRPSMF ¶47; DSMF ¶ 9; PRDSMF ¶ 9. The TRB unanimously found: The record shows inconsistencies and partialities in the documents submitted in the Application, as became apparent in the hearing process.... The Forum expressed its concern in the hearing room in view of acts by the corporation, parent company and affiliates of petitioner, that seem to cast doubt on the independence of each one and can suggest hints of cross subsidies, prohibited by the applicable federal and local regulation ...". From the facts it is apparent that petitioner began the construction of the plant without this Board’s permisSion, as required by Act 213, Chap. Ill, Art. 9(a)l. DSMF ¶ 5; PRDSMF ¶ 5. The TRB also stated: Once the comment process was completed, through a Resolution and Order issued on August 21, 2008, we cited petitioner to a public hearing to be held on September 26, 2008. The purpose thereof was to allow petitioner, through evidence from testimony and documents, to clarify certain assertions of an economic, technical and operational nature raised by the companies providing similar services. The need for this hearing arises due to the inadequate nature of the information submitted by petitioner by not explaining adequately aspects challenged by the companies. On October 10, 2008, the testimony of the rest of the witnesses announced was not taken because the Board stated their decision on that occasion, given in court, to deny the petitioner’s request for franchise as filed. This Board believed that, in accordance with the testimony taken during the course of the hearing, the request submitted suffered from irreparable defects, such as information that was incomplete or inconsistent with what had been submitted during the course of the hearing. During the process, petitioner seemed reluctant to reveal information requested by the Board, as well as vital details of its operation. DSMF ¶¶ 6-8; PRDSMF ¶¶ 6-8. 2. PRTC’s Second Franchise Application On December 11, 2008, PRTC filed a second franchise application. PSMF ¶ 48; DRPSMF ¶ 48; DSMF ¶ 10; PRDSMF ¶ 10. PRTC applied on December 11, 2008, for a Special Temporary Authority (STA) to “provide a pre-reléase version of Claro TV to PRTC employees who elect to participate in a temporary, beta-testing phase of this service.” DSMF ¶ 11; PRDSMF ¶ 11. On December 17, 2008, the TRB granted PRTC’s request for a STA. DSMF ¶ 12; PRDSMF ¶12. The TRB did not seek public comment or serve notice on OneLink of its order granting PRTC the STA. DSMF ¶ 13; PRDSMF 1113. On December 30, 2008, the Board accepted PRTC’s franchise application and scheduled a public hearing for February 11-13, 2009. PSMF ¶ 48; DRPSMF ¶ 48. Without public comment or service of notice on OneLink, on January 9, 2009, the TRB issued a Resolution and Order granting expedited review of PRTC’s December 2008 application. DSMF ¶ 14; PRDSMF ¶ 14. On January 13, 2009, OneLink again filed a Motion to Intervene., PSMF ¶ 49; DRPSMF ¶ 49. Based on the filing of the Motion to Intervene before the TRB by OneLink, and motions for protection of confidential information filed by PRTC, the TRB vacated the previously scheduled February 11-13, 2009 hearing dates, and reset them for March 4-6, 2009. PSMF ¶ 50; DRPSMF ¶50; DSMF ¶ 15; PRDSMF ¶ 15. On January 21, 2009, the TRB issued an order requesting that PRTC respond to OneLink’s Motion to Intervene, and PRTC submitted a motion in opposition to OneLink’s Motion to Intervene on January 23, 2009. PSMF ¶ 154; DRPSMF ¶ 154. On February 19, 2009, the TRB issued another order inviting OneLink to argue its intervention motion at the March 4, 2009 public hearing. PSMF ¶ 155; DRPSMF ¶ 155. When the TRB did not rule on its intervention request, on February 25, 2009 — one week prior to the scheduled public hearing on PRTC’s franchise application — OneLink sued the TRB in the Court of First Instance for mandamus; in its petition OneL-ink claimed it had not gained access to certain confidential documents before the scheduled March 4-6, 2009 franchise application hearings and requested that the court order the TRB to resolve its January 13, 2009 Motion to Intervene, as it had “not taken any action regarding” its intervention motion and had “refused to consider” its motion. PSMF ¶¶ 51, 152; DRPSMF ¶¶ 51,152. On March 2, 2009, TRB issued an order denying intervention. PSMF ¶ 52; DRPSMF ¶ 52. In that order, the TRB noted: we decided to postpone the intervention decision until the date set for the hearing. This would allow the parties to be more thoroughly prepared to answer the questions of this Board and to determine the course to be followed with regard to the proceeding before our consideration. Given the circumstance that OneLink went before the Honorable Trial Court, San Juan Superior Division, through a petition for a writ of mandamus, we are forced to decide this issue within a limited period of time, without the benefit of arguments or case law that may help the parties to expand, rectify and improve their respective positions. [I]ntervention of OneLink or other companies is not necessary for [the TRB] to determine whether or not it is appropriate to grant a second franchise, particularly because in a matter of the proposal for a franchise with new technology (IPTV), none of the companies appearing herein are in a position to offer expert information or specialized knowledge that would not be otherwise available in the proceeding. Nevertheless, the appearing party has been allowed to participate actively in the prior proceeding, without having the title of intervener, and its comments, under this proceeding, will be sufficient for the Board. PSMF ¶¶ 53; DRPSMF ¶¶ 53; DSMF ¶ 17; PRDSMF ¶ 17. During the PRTC’s franchise proceedings, the TRB never rejected any submission that OneLink sought to provide, though the TRB did not respond to all of OneLink’s submissions.’ PSMF ¶¶ 28, 46; DRPSMF ¶¶ 28, 46. On March 3, 2009, OneLink appealed the TRB’s rejection of their second request for intervention to the Puerto Rico Court of Appeals. PSMF ¶ 54; DRPSMF ¶ 54. On that same day OneLink secured a stay pending appeal from the Puerto Rico Court of Appeals that prevented the TRB from considering the franchise application. PSMF ¶55; DRPSMF ¶ 55; DSMF ¶ 21; PRDSMF ¶21. PRTC and the TRB opposed OneLink’s request for a stay of the second franchise proceeding from the Puerto Rico Court of Appeals. DSMF ¶ 20; PRDSMF ¶ 20. On March 11, 2Q09, the TRB stated in an emergency motion to the Puerto Rico Court of Appeals for oral argument that the case presented “a dispute of a highly technical nature that involves important principles of federal and state public policy that have never been taken up by the courts in this country.” DSMF ¶ 18; PRDSMF ¶ 18. The Puerto Rico Court of Appeals granted oral argument on the appeal of the TRB’s denial of OneL-ink’s intervention petition. DSMF ¶ 19; PRDSMF ¶ 19. On March 31, 2009, the Puerto Rico Court of Appeals denied the appeal, holding that OneLink had no right to intervene, stating: we are convinced that after the permits or franchises are issued, the right of OneLink to intervene arises_There-fore, it is at said stage that it is proper to apply the rules relative to the request for intervention contained in the L.P.A.U. and in the administrative regulations about adjudicative of the agencies concerned in the matter. To render a different opinion would reduce speed and efficiency in the procedure established by the [TRB] to evaluate the franchise applications that are presented before them and would go against ... the clear public policy established by virtue of the 1996 Telecommunications Act. PSMF ¶ 56; DRPSMF ¶ 56. In addition to the following four motions filed by OneLink with the TRB between January 30, 2009 and March 2, 2009 — (1) Motion to Vacate or Stay Confidentiality Determinations and Enforce Board Confidentiality Procedures (filed January 30, 2009, denied March 2, 2009); (2) Urgent Motion to Dismiss PRTC’s Application (filed Feb. 25, 2009, no decision by TRB), (3) Urgent Motion of OneLink for an Extension of Time to File Comments, for the Establishment of a Reply Comment Cycle, and for a Revised Hearing Schedule (filed February 11, 2009, denied Mar. 2, 2009); and (4) Motion of OneLink for an Order Requiring PRTC to Report the Results of the Beta-Testing it Conducted Pursuant to the Board’s 12/17/08 Resolution and Order (March 2, 2009, no decision by TRB)— OneLink also filed three motions and memoranda with the TRB after the Puerto Rico Court of Appeals denied its appeal on March 31, 2009: (1) Emergency Motion to Show Cause (filed April 7, 2009); (2) Opposition to PRTC’s Motion to File Reply Comments (filed April 23, 2009, denied May 13, 2003); and (3) Motion to Set Aside Public Hearing (filed April 27, 2009, denied May 1, 2009)., PSMF ¶57; DRPSMF ¶ 57; PSAMF ¶ 6; DRPSAMF ¶ 6. On May 20, 2009, the Supreme Court of Puerto Rico granted certiorari for OneL-ink’s appeal of the TRB’s order denying OneLink’s motion to intervene in PRTC’s second franchise application proceedings, as well as issuing a stay of the proceedings pending resolution of OneLink’s appeal. PSMF ¶ 59; DRPSMF ¶59; DSMF ¶¶22, 28; PRDSMF ¶¶22, 28. PRTC and the TRB opposed OneLink’s request for a stay of the second franchise proceeding from the Puerto Rico Supreme Court. DSMF ¶ 27; PRDSMF ¶ 27. OneLink quickly celebrated the stay, proclaiming “We Win”; Gov. George Pataki, a OneLink Board member and partner at the firm representing OneLink in the litigation, responded that securing the stay was “fantastic,” and OneLink CEO Mr. Dorchester responded that “it’ll be OK for you to speak up in the Chadbourne partners meeting about a Volume discount’ for anything over a million!!!!!!!!!” PSMF ¶¶31, 60; DRPSMF ¶¶ 31, 60, On August 21, 2009, in an emergency application to the Puerto Rico Supreme Court seeking oral argument, the TRB stated: “This is a novel case with significant repercussions for the referenced industry and for administrative practices in this Country.” DSMF ¶ 23; PRDSMF ¶ 23. Similarly, on August 21, 2009, in a request to the Puerto Rico Supreme Court seeking oral argument, PRTC stated that the case “raises fundamental questions” and that it raised “a highly technical matter of considerable public interest that for the first time has been submitted before this Honorable Court.” DSMF ¶24; PRDSMF ¶24. PRTC also stated: “Oral argument is particularly useful” where “there remains ‘a gray area that needs to be analyzed and that is brought out in oral argument by the litigants.’” DSMF 1Í25; PRDSMF ¶25. The Puerto Rico Supreme Court permitted the parties oral argument on OneLink’s appeal of the Court of Appeals’ March 31, 2009 decision denying OneLink’s intervention petition. DSMF ¶ 26; PRDSMF ¶ 26. The Puerto Rico Supreme Court denied the TRB’s and PRTC’s request that the Puerto Rico Supreme Court conduct an expedited review of OneLink’s appeal of the Court of Appeals’ March 31, 2009 decision denying OneLink’s intervention petition. DSMF ¶ 29; PRDSMF ¶ 29. On June 9, 2010, more than a year after granting review, the Supreme Court of Puerto Rico affirmed the judgment issued by the Court of Appeals denying OneL-ink’s request for intervention; in its decision the Puerto Rico Supreme Court wrote: [w]e must determine whether a competitor has the right to intervene in a proceeding to evaluate a cable television franchise application submitted by another company or if, on the contrary, this right only arises when an adjudicative proceeding is commenced to challenge the approval or denial of the franchise, or if a complaint is filed. To do this analysis, it is necessary to examine and study the public policy that exists in Puerto Rico and at the federal level regarding cable television system telecommunications, and to analyze Chapter Y of Law No. 170 of August 12, 1988, which is known as [the LPAU], which concerns the Procedure for Granting Licenses, Franchises, Permits and Similar Actions. Furthermore, we must similarly clarify the rule that this Court established in the case of San Antonio Maritime v. Puerto Rican Cement Co. As is evident, the right to intervene can only exist within an adjudicative proceeding. If this type of process does not exist, this right is nonexistent. This Court has only issued a declaration for the purpose of establishing that there is in effect an adjudicative proceeding when the regulatory entity, in this case the Regulatory Board, decides to grant or deny the franchise, license or permit and this decision is questioned or challenged. Never before have we made a declaration as to whether the nature of the adjudicative proceeding, and thus, the right to intervene is also present at the initial point when it is explained whether or not the requested franchise or license has been granted. In order to analyze this dispute, it is necessary to assess the legislative intention., PSMF ¶¶ 61-62; DRPSMF ¶¶ 61-62; DSMF ¶¶ 30, 32; PRDSMF ¶¶30, 32 (internal citations omitted). The Puerto Rico Supreme Court’s opinion was 46 pages long. DSMF ¶ 31; PRDSMF ¶31. On June 30, 2010, and again on September 13, 2010, OneLink requested reconsideration by the Supreme Court, and on both occasions its request was denied. PSMF ¶ 64; DRPSMF ¶ 64. On November 24, 2010, Board proceedings on PRTC’s franchise application resumed after OneLink’s Supreme Court appeal was rejected. PSMF ¶ 140; DRPSMF ¶140. On January 3, 2011, PRTC supplemented its application “[i]n compliance with the Board’s directives, and given that in the intervening two years since the application was filed certain facts contained in the original application [had] changed.” PSMF ¶ 141; DRPSMF ¶ 141. 3. Motions to Recuse TRB President Sandra Torres Before the TRB could set a hearing date, on January 20, 2011, OneLink filed a Motion to Recuse TRB President Sandra Torres from further involvement in the proceedings. PSMF 1Í142; DRPSMF ¶ 142; DSMF ¶ 33; PRDSMF ¶ 33. Sandra Torres was a former, over 30-year employee with PRTC before she became a TRB Commissioner, and had served as Secretary of PRTC’s Board of Directors. DSMF ¶ 35; PRDSMF ¶35. While a TRB Commissioner, Ms. Torres and her husband have held pensions with PRTC. DSMF ¶¶ 36-37; PRDSMF ¶¶ 36-37. The Senate of Puerto Rico Report on Appointment of Ms. Sandra E. Torres Lopez as Chair of the Telecommunications Regulatory Board reported that “[t]he nominee was asked about how matters related to the PRTC would be addressed within the Board. The nominee emphatically indicated that she would refrain from these matters ....” DSMF ¶ 34; PRDSMF ¶34. OneLink argued that Commissioner Torres must re-cuse herself from PRTC’s franchise proceeding because, inter alia, she had been a former employee of PRTC and was receiving a pension from PRTC. PSMF ¶ 143; DRPSMF ¶ 143. President Torres submitted the matter to the Puerto Rico Governmental Ethics Office. PSMF ¶ 144; DRPSMF ¶ 144. On March 29,2011, the Ethics Office issued an opinion finding that President Torres “need not recuse [herself] from intervening before the Board and any other venue, as President and Associate Member of the Board, in [PRTC’s franchise proceeding]” because the pension did not constitute a “monetary interest in PRTC” and because she “did not intervene or participate, directly, or indirectly, in [PRTC’s IPTV project] while [she] was employed by PRTC.” PgMF ¶ 145; DRPSMF 11145. On April 6, 2011, seventy-six days after OneLink filed the Motion to Recuse with the Board for its consideration, the TRB scheduled a hearing on PRTC’s Franchise Application for April 27, 2011. PSMF ¶ 146; DRPSMF ¶ 146. According to OneLink Board Member former Governor Pataki, OneLink “felt that the TRB was unduly influenced by PRTC.” PSMF ¶ 147; DRPSMF ¶ 147. In particular, OneLink thought the TRB was unfair because “the new chair of the TRB [Sanda Torres] had worked ... for PRTC” and OneLink “felt that she would be unduly siding with PRTC regardless of the merits of [OneLink’s intervention] application.” PSMF ¶ 148; DRPSMF ¶148. “[0]utraged that someone who had worked at PRT[C] ... could be in a position of making decision[s] and regulating PRTC,” Governor Pataki met with Puerto Rico Governor Fortuno in August 2011 to tell him that OneLink “didn’t think it’s fair to have someone who worked for PRTC in the position of making decisions and regulating PRTC.”, PSMF ¶ 149; DRPSMF ¶ 149. On November 16, 2011, after the TRB granted PRTC’s franchise application, OneLink renewed its request to re-cuse Commission Torres by filing a Motion for Vote of No Confidence and Disqualification of Commissioner Sandra Torres. PSMF ¶ 151; DRPSMF ¶ 151. 4. Approval of PRTC’s Franchise Application On August 1, 2011, OneLink filed an Urgent Motion Requesting Access to Documents and Opportunity to Prepare for Hearing. PSAMF ¶6; DRPSAMF ¶6. During the August 8, 2011 public hearing in the second franchise proceeding, the TRB did not allow OneLink to cross-examine witnesses, and no interested party— including OneLink — was allowed to observe any of PRTC’s testimony deemed confidential. DSMF ¶ 40; PRDSMF ¶40. On August 19, 2011, the TRB approved a Resolution and Order approving PRTC’s franchise application, and a notification of the decision was published on November 2, 2011; in her dissenting opinion published on November 3, 2011, Commissioner Torres asserted that the November 2, 2011 notification was “null and contrary to law,” elaborating: Mr. Vicente Aguirre Iturrino officially ended his term of office as Associate Member of the Board on September 12, 2011. Nevertheless, said term was extended until October 3, 2011, until the appointment of the new associate member. On October 4, 2011, Mrs. Gloria Escude-ro Morales began to perform her duties as Associate Member of the Board. On October 20, 2011, a Board Session was held; on that occasion, the [August 19, 2011] Decision and Order pending approval was not discussed. Nevertheless, on that same day of October 20, with the Session still being held, Mrs. Santini Hernández and Mr. Aguirre Iturrino, who was in the Board facilities, in the office occupied by Mrs. Santini, proceeded to sign a Decision and Order, prepared by both of them and which is substantially different from the one that was submitted by the Official Examiner, the terms and conditions of which were approved in sessions held on August 11 and 19, 2011. Said Draft Decision and Order signed by Mrs. Santini Hernández and the former Associate Member, Mr. Aguirre, was sent to the Secretary’s Office in order to have it certified and notification made. On November 2, 2011, notification was made of the Decision and Order prepared and signed by Mrs. Santini and former Associate Member Aguirre. The notification made on November 2 of the Decision and Order is null and contrary to law, since it is not strictly what was approved in the sessions of August 11 and 19, 2011. Mrs. Santini Hernández and Mr. Aguirre Iturrino carried out an ultra vires action, i.e., without authority under law that would support such an action. DSMF ¶¶ 41-44; PRDSMF ¶¶ 41-44. The November 2, 2011 TRB Resolution and Order stated: PRTC has been building the IPTV network that would be used to provide the proposed service since approximately March 2007. On that date and as of today, PRTC does not have a cable TV franchise issued by the Board. Chapter III, Article 9, section (7) of Act 213 provides: ‘No cable company may construct or operate a cable system, in whole or in part, in Puerto Rico without having previously had a franchise under this article for said construction or operation.’ DSMF ¶ 45; PRDSMF ¶45. The TRB also wrote in the Resolution and Order that “[u]pon examining the documents and the evidence submitted by PRTC in relation to the costs that it will have to incur or that are charged in providing IPTV service, it was established that it will incur cross subsidies.” DSMF ¶ 46; PRDSMF ¶46. The TRB further held in its November 2, 2011 Resolution and Order: [t]he Board has grounds to conclude that PRTC illegally built its IPTV network in violation of Act 213, Chapter III, Section 9(a)(1) of Act 213, which prohibits the construction and operation of a cable system and public easements without first obtaining the franchise (see 47 [UJ.S.C. Sections 541(a)(2) and (b)(1)). PRTC continued to build the IPTV network even after February 29, 2009, which is when PRTC withdrew its request for ‘Special Temporary Authority’ before the Board. It is because of the above that the Board will begin an Order process to show cause for illegal construction of the system, DSMF ¶ 47; PRDSMF ¶ 47. The TRB concluded in its November 2, 2011 TRB Resolution and Order: All the adjustments and requirements contained in this order are intended to put the petitioner on an equal footing with respect to the rest of the cable TV industry, protecting the development of competition both in the cable TV market and in the telecommunications market, since it will be paying a fair price for the infrastructure used in compliance with federal provisions. We conclude that it is beneficial to the public interest to grant the requested franchise in favor of Puerto Rico Telephone Company, Inc. d/b/a Claro TV, with the conditions detailed below: (1)Comply with the adjustments to the Local Loop UNE cost, as required in this order as an essential condition. Comply with submitting the ‘true-up’ report explained in the Resolution and Order and obtain approval of the same by the Board. (2) Submit all the information requested for the Board’s evaluation. (3) Make the necessary adjustments to comply with local and federal laws if the Board finds that, based on the analysis of the requested information, these are indispensable to make feasible the issuance of the franchise. (4) Prepare and submit, as an attachment, a Code to protect the consumer, including aspects such as: penalties for early termination, charges for late payment, automatic renewal, etc. This code will be a working draft that the Board will use and that, when the Board finally approves it, will apply to the entire cable TV industry. (5) Submit an expansion plan and technical details related to service quality, improvements in areas without service or poorly served areas. (6) Three percent (3%) of its income is set as payment for franchise. (7) To be able to start offering service to the public, it must have the Board’s approval with regard to safeguards established as essential in this Resolution and Order and with those that may arise in response to the additional information being requested. (8) Once the setup plan submitted by the petitioner is approved, the latter will submit a contract draft using existing ones as a basis, including the technical details of the network and all those essential conditions that are established in this Resolution and Order. DSMF ¶ 48; PRDSMF ¶ 48. On November 8, 2011, the TRB approved PRTC’s franchise application but did not approve the franchise agreement necessary to PRTC’s ability to offer IPTV service. PSMF ¶ 73; DRPSMF ¶73. In its November 8, 2011 Resolution and Order (published on November 16, 2011), the TRB reconsidered, revoked, and replaced the TRB Resolution and Order dated November 2, 2011. DSMF ¶ 49; PRDSMF ¶49. Sandra Torres and Gloria Escudero Morales represented the majority in the November 8, 2011 TRB decision. DSMF ¶ 52; PRDSMF ¶ 52. Prior to her service on the TRB, Gloria Escudero Morales was employed by PRTC for over 30 years. DSMF ¶ 53; PRDSMF ¶53. While a TRB member, Gloria Escudero Morales held a pension with PRTC. DSMF ¶ 54; PRDSMF ¶54. The TRB’s November 8, 2011 Resolution and Order stated that “any party adversely affected by this Resolution and Order may file a motion for reconsideration in the Secretary’s Office of the [TRB], within the term of twenty (20) days, starting from the filing of the notice of this order in the case file.” DSMF ¶ 50; PRDSMF ¶ 50. On November 15, 2011, however, before PRTC’s franchise agreement was approved, OneLink again moved to intervene. PSMF ¶ 75; DRPSMF ¶ 75; DSMF ¶ 51; PRDSMF ¶ 51. It was not until February 1, 2012 that the TRB finally approved PRTC’s franchise agreement, granting PRTC “a nonexclusive franchise to construct, install, maintain, extend and operate a closed system where subscription video service will be delivered using Internet Protocol over a broadband network, within the Franchise Area designated in the Franchise Agreement.” PSMF ¶ 74; DRPSMF ¶74. The February 1, 2012 Resolution and Order was served on February 8, 2012, and the TRB wrote that: the Board DETERMINES AND ORDERS that the Franchise Agreement between the Board and PRTC is AP-PROVED_ [P]arties wishing to oppose the grant of this franchise can use the recourse of reconsideration before the Board, by filing their petition within 20 days of the notification of this Resolution and Order.... ‘[TJhis petition must be in writing, be duly motivated and demonstrate the legitimate and substantial capacity and interest of the person in the procedure. DSMF ¶ 55; PRDSMF ¶ 55. On February 13, 2012, OneLink filed a Notice of Automatic Stay of the Franchise Order and Agreement, claiming that the franchise proceeding and franchise agreement “is automatically stayed and without effect until after termination of the adjudicative process and resolution of all filings opposing the Franchise, including the [petition in opposition to the franchise] filed on February 10, 2012 by OneLink.” PSMF ¶ 127; DRPSMF ¶ 127. On April 4, 2012, the TRB issued a Resolution and Order concluding “that there is no legal provision supporting OneLink’s position,” and that a “simple reading of the beginning of the [very opinion cited by OneLink in support of its automatic stay position] ... leaves no doubt that the decision has to do with a procedural aspect of the auction process, specifically petitions for reconsideration of awards at auctions.” PSMF ¶ 128; DRPSMF ¶ 128. On February 10, 2012, OneLink also filed a “Petition in Opposition to Franchise and in Further Support of ‘Legitimate and Substantial Interest,’ and Request for Immediate Access to the Administrative Record” in “further support of OneLink’s ‘legitimate and substantial interest’ in this proceeding.” DSMF ¶56; PRDSMF ¶ 56; PSMF 1Í126; DRPSMF ¶ 126. On February 28, 2012, OneLink filed a “Petition for Reconsideration and in Further Support of Intervention” and stated that “[t]his petition supplements OneLink’s February 10, 2012 Petition in Opposition to Franchise and in Further Support of ‘Legitimate and Substantial Interest,’ and Request for Immediate Access to the Administrative Record (“Initial Petition”) that challenges the Board’s grant of a ‘franchise’ to PRTC.” PSMF ¶ 133; DRPSMF ¶ 133; DSMF ¶57; PRDSMF ¶57. The TRB stated in a March 9, 2012 Ruling and Order: “The [TRB] will issue a definitive Ruling and Order on said Motion for Reconsideration within ninety (90) days of the date of its filing. In the event the [TRB] fails to take any action with regard to the Motion for Reconsideration within said ninety-day (90) period, it shall lose jurisdiction over the same, and a period of thirty (30) days in which to request a review shall begin to run upon the expiration of said ninety-day (90) day period.” DSMF ¶ 58; PRDSMF ¶ 58. The TRB did not rule on OneLink’s reconsideration motion within 90 days of March 9, 2012. DSMF ¶ 59; PRDSMF ¶ 59. In its April 4, 2012 Resolution and Order, the TRB held that it is only when the franchise agreement is final that “a person not originally considered a party by the Board can file a motion for intervention requesting the agency’s decision be reconsidered, as long as: this request is written, well founded, and shows the legal capacity and substantial and legitimate interest that the petitioner has in the proceedings, [citing Puerto Rico Tel. Co. v. San Juan Cable LLC, 2010 TSPR 89, 179 D.P.R. 177 (2010)].” PSMF ¶¶ 76, 134; DRPSMF ¶¶ 76, 134 (emphasis in TRB order). The TRB appointed an Official Examiner to determine whether OneLink had such an interest. PSMF ¶ 135; DRPSMF 11135. The TRB also held in its April 4, 2012 Resolution and Order: This is why [OneLink’s] premature motion to intervene dated November 15, 2011 (OneLink Motion to Intervene) was not admissible, because the starting point to request reconsideration of this Board’s decision had not yet procedurally begun when PRTC filed the Franchise Request, nor when this Board ruled that the PRTC application complied with the legal requirements for awarding it, i.e. dating from November 8, 2011, but rather only after our ruling issued on February 1, 2012. In other words, only when PRTC had complied with the preliminary conditions for negotiating a franchise contract and when the parties had effectively reached an agreement giving rise to the franchise contract FC-100. Bear in mind that if PRTC had not complied with its conditions, there would have been no franchise; just as if the parties had not reached an agreement in the negotiations, there would have been nothing to challenge. Due to the aforementioned, the Decision and Order dated February 1, 2012, bore the necessary notice to comply with ruling [Puerto Rico Tel. Co. v. San Juan Cable LLC, 2010 TSPR 89, 179 D.P.R. 177 (2010)]. PSMF ¶ 77; DRPSMF ¶ 77. On July 9, 2012, the TRB set OneLink’s intervention motion for a hearing on August 9, 2012. DSMF ¶ 60; PRDSMF ¶ 60; PSAMF ¶ 11; DRPSAMF ¶ 11. OneLink appeared at the August 9, 2012 intervention hearing, as did representatives of PRTC. PSAMF ¶ 12; DRPSAMF ¶12. OneLink was given “the opportunity to present the evidence and arguments that it deemed appropriate for its claim for intervention” at the August 9, 2012 intervention hearing, but opted not to do so on the bases that, inter alia, they did not recognize the TRB’s jurisdiction because it did not rule on OneLink’s reconsideration motion within 90 days of March 9, 2012. PSAMF ¶ 13; DRPSAMF ¶ 13. On May 9, 2012, the Court of Appeals issued a decision stating that it did not have jurisdiction to review the TRB’s order because OneLink had not exhausted its administrative remedies, noting that the adjudicative process (through which OneLink could file a petition for reconsideration regarding PRTC’s franchise) had not begun because the TRB had not yet decided whether OneLink had the right to intervene in PRTC’s franchise proceeding (i.e., the TRB had not yet decided whether OneLink had a “legitimate and substantial interest” in PRTC’s franchise proceeding). PSMF ¶ 130; DRPSMF ¶130. OneLink filed a motion for reconsideration of this decision on May 25, 2012, and the Court of Appeals denied it on May 30, 2012. PSMF ¶ 131; DRPSMF ¶ 131. On July 2, 2012, OneLink appealed the Court of Appeals’ decision to the Puerto Rico Supreme Court. PSMF ¶ 132; DRPSMF ¶ 132. The Supreme Court denied OneLink’s certiora-ri petition on October 11, 2012. Id. OneLink filed a petition for review before the Puerto Rico Court of Appeals on June 27, 2012, regarding its petition for reconsideration of PRTC’s franchise. PSMF ¶ 136; DRPSMF ¶ 136. OneLink argued the TRB lost jurisdiction when it let ninety days pass without taking action on OneLink’s petition for reconsideration. PSMF ¶ 137; DRPSMF ¶ 137. On August 30, 2012, the Court of Appeals issued an opinion denying OneLink’s request, stating it did not have jurisdiction to review OneL-ink’s petition for reconsideration because OneLink had not exhausted its administrative remedies. PSMF ¶ 138; DRPSMF ¶ 138. The Court of Appeals noted that, as it had indicated in its May 9, 2012 Opinion regarding OneLink’s automatic stay request, the adjudicative process (through which OneLink could file its petition for reconsideration) had not yet started because the TRB had not decided whether OneLink had the right to intervene in PRTC’s franchise proceeding (i.e., the TRB had not decided whether OneLink had a “legitimate and substantial interest” in PRTC’s franchise proceeding). PSMF ¶ 139; DPRSMF ¶ 139. 5. Cross-Subsidization Rulemaking Petitions In its December 11, 2008 Franchise Application, PRTC stated that it would “comply!!] with the applicable FCC rules on accounting, cost allocation and affiliate transactions” to “ensure that regulated rate-payers do not bear the burden of [PRTC’s] provisions of video services and that the costs of the video service are kept separate from the costs of [PRTC’s] regulated activities.” PSMF ¶ 78; DRPSMF ¶ 78. On July 22, 2009, OneLink filed a Petition for Rulemaking Regarding Cross-Subsidization, stating that “the [TRB] first should adopt rules to prohibit cross-subsidization” and that “only after those rules have been adopted should the [TRB] further process [PRTC’s] IPTV application.” PSMF ¶ 79; DRPSMF ¶ 79. In its Petition for Rulemaking, OneLink stated: the representation that PRTC will comply with the FCC rules is insufficient to protect OneLink and other competitors from unlawful cross-subsidization. The FCC rules apply only to interstate telecommunications while the Board is charged with regulation of intrastate telecommunications. Thus, the FCC rules fail to address the relevant market. Despite the representation in the IPTV application, PRTC would be within its rights to later claim that the FCC rules are inapplicable or only partially applicable. In any case, the Board should not rely on and should not require OneLink and other competitors to rely upon petitioning the FCC to obtain relief against PRTC. The Statement of Public Policy in Law 213 provides that it is the policy of Puerto Rico to ‘concentrate the primary jurisdiction with regarding to the regulation of the telecommunications field in a single agency of the Commonwealth of Puerto Rico. Doing so will be far more effect [sic] than relying upon the FCC to enforce rules that PRTC may later argue are not applicable to intrastate ILEC and IPTV services. The Board will recall that the Board found it difficult to obtain from [PRTC’s corporate parent] America Móvil specific and verifiable information with regard to the investment commitment. Likewise, PRTC fails to explain how compliance with FCC rules would provide the Board with specific and verifiable information necessary to prevent cross-subsidization., PSMF ¶¶ 80, 111, 116; DRPSMF ¶¶80, 111, 116. When the TRB did not take action on its Petition for Rulemaking, OneLink filed a mandamus petition in the Court of First Instance on November 4, 2009, and filed an amended mandamus petition on December 10, 2009. PSMF ¶ 81; DRPSMF ¶ 81. On January 13, 2010, the Puerto Rico Court of First Instance issued an opinion denying OneLink’s mandamus request, holding that the TRB did not have the administrative duty to promulgate cross-subsidy rules. PSMF ¶ 82; DRPSMF ¶ 82. On June 30, 2010, the Puerto Rico Court of Appeals affirmed the Court of First Instance’s opinion, stating “we do not find any principle in the law that imposes an administrative duty on the Board to regulate the prohibition of cross-subsidies. On the contrary ... the full analysis ... and the legislative intent underlying [the telecommunications laws] suggest without a doubt that the regulation of the matter in dispute falls within the discretion of the Board.” PSMF ¶83; DRPSMF ¶83. On July 23, 2010, OneLink filed a motion for reconsideration, which was denied by the Court of Appeals on August 5, 2010. PSMF ¶ 84; DRPSMF ¶ 84. Regarding OneLink’s cross-subsidy concerns, the TRB stated in its November 8, 2011 Resolution and Order approving PRTC’s franchise application that “[fjrom our review and analysis, we do not find any evidence whatsoever that leads us to conclude that the PRTC is not in compliance with the requirements imposed by ... the FCC rules on crossed subsidies. We find no evidence that there is a crossed subsidy at present.... We conclude that the FCC rules, combined with the supervisory role of the Board, are measures for protecting the Puerto Rican consumer form the negative effects of a crossed subsidy.” PSMF ¶85; DRPSMF ¶85. In its February 1, 2012 Resolution and Order approving PRTC’s franchise agreement, the TRB further stated that “no cross-subsidization is currently occurring because PRTC is not providing any IPTV service.” PSMF ¶ 86; DRPSMF ¶86. In the context of the PRTC’s second franchise application, the TRB — through its November 8, 2011 and February 1, 2012 Resolution and Orders — addressed cross-subsidization by noting that the FCC already has in place a comprehensive cross-subsidy regulatory scheme under parts 32 and 64 of the FCC rules and imposing requirements to insure compliance with this federal regulatory scheme; the TRB noted that cross-subsidization was a key issue in the denial of PRTC’s first franchise application, and in its November 2, 2011 Resolution and Order the TRB found deficiencies in PRTC’s second franchise application regarding cross-subsidization. PSMF ¶ 87; DRPSMF ¶ 87. 6. Illegal Buildout Complaints In December 2008 PRTC requested and was given authority by the TRB to conduct a test of IPTV related capabilities. PSMF ¶ 34; DRPSMF ¶34. The proposed test involved the provision of certain services to 200 PRTC employees’ homes. Id, On January 13, 2009, OneLink, which was not an intervenor, challenged the grant of the Special Temporary Authority (STA) by the TRB. PSMF ¶ 88; DRPSMF ¶88. OneL-ink filed a complaint in this Court on February 10, 2009, and another on April 2, 2009, both requesting an injunction against PRTC’s construction of its IPTV network under the STA that had been approved by the TRB. PSMF ¶ 17; DRPSMF ¶ 17. On July 15, 2009, OneLink filed a state court lawsuit alleging that PRTC violated the Puerto Rico Telecommunications Act by illegally building a cable system, and requesting a preliminary injunction. Id. OneLink admitted that it probably would not have been harmed by the STA “if you lookfed] at it independently,” and regarding the surrounding circumstances of the STA and their challenge to the IPTV testing, OneLink submitted: we had concerns that we shared that were not acted upon. [PRTC’s second franchise application] was suddenly an expedited process, that we had asked the [TRB] to address certain issues, certain elements that were not addressed. Suddenly, now it’s going on a fast tract. Something smelled fishy. You know, we needed to get to the bottom of it. [A]dvice of counsel is one component of the entire decision. There were the fact on the streets. There were the environments in which they were operating. There were [PRTC] who — we all know what [PRTC] is. All these components made it to believe that we needed to continue down that path. PSMF ¶¶ 35, 94; DRPSMF ¶¶85, 94; PSAMF ¶¶ 27-28; DRPSAMF ¶¶ 27-28. OneLink Board member Barrett Gilmer, one of the individuals responsible for approving the filing of the OneLink petitions at issue, testified that in his view the construction of a head end facility by PRTC prior to obtaining a franchise would be illegal; however, he could not recall OneL-ink’s Cable Act claims. PSAMF ¶¶ 7, 25; DRPSAMF ¶¶ 7, 25. OneLink CEO Ron Dorchester, whose deposition was taken after Mr. Gilmer’s, did not believe that construction of a head end prior to receiving a cable franchise was illegal. PSAMF ¶ 26; DRPSAMF ¶ 26. Mr. Dorchester, one of the individuals responsible for approving the filing of the OneLink petitions at issue, including OneLink’s illegal construction petitions, testified that two of the reasons he believed PRTC was engaged in illegal construction included that he drove by some construction and that he saw a photograph in a newspaper article. PSAMF ¶¶ 8, 24; DRPSAMF ¶¶8, 24. Russell Skinner, a technology consultant hired by OneLink, submitted a declaration in OneLink’s first federal illegal construction suit supporting OneLink’s claim that PRTC was engaged in illegal construction. PSAMF ¶ 9; DRPSAMF ¶ 9. Jeffrey Marcus, a member of OneLink’s Board of Directors testified regarding OneLink’s federal filings after April 2, 2009: “I wanted to find a forum where our arguments could be heard without being blocked by technicalities, because I believed we were right.” DSFM ¶ 64; PRDSMF ¶ 64. a. First and Second Cable Act Complaints The February 10, 2009 federal lawsuit against the TRB and PRTC alleged violations of the Cable Act, 47 U.S.C. §§ 521-573. PSMF ¶ 89; DRPSMF ¶89. OneLink requested a temporary restraining order. PSMF ¶ 90; DRPSMF ¶ 90. On February 18, 2009, the Court issued an order to show cause. PSMF If 91; DRPSMF ¶91. On February 20, 2009, after PRTC agreed to withdraw its request to test its IPTV system through the STA, PRTC and the TRB submitted a joint response to dismiss OneLink’s case. PSMF ¶ 92; DRPSMF ¶ 92. Neither PRTC nor the TRB argued that OneLink lacked standing to bring its claims; this Court and the First Circuit, however, later concluded that OneLink lacked standing to bring its claims. DSMF ¶ 61; PRDSMF ¶ 61. On February 24, 2009, the United States District Court for the District of Puerto Rico issued an “ORDER DISMISSING CASE on mootness grounds. The Regulatory Board’s issuance of an order granting PRTC’s request to discontinue the beta test has rendered OneLink’s request for relief moot.” DSMF ¶ 62; PRDSMF ¶62; PSMF ¶ 93; DRPSMF ¶ 93. On March 25, 2009, OneLink moved to re-open its Cable Act case, but instead, the Court requested that OneLink file a new case challenging PRTC’s alleged illegal pre-franchise construction. .PSMF ¶ 95; DRPSMF ¶ 95. On April 2, 2009, at the Court’s suggestion, OneLink filed another complaint under the Cable Act alleging an illegal construction and operation of a cable system. PSMF ¶ 96; DRPSMF ¶ 96. On April 6, 2009, OneLink sought injunc-five relief. PSMF ¶ 97; DRPSMF ¶97. On April 16, 2009, OneLink filed an amended complaint under the Cable Act, raising the same illegal construction and operation claims' under 47 U.S.C. § 541(a)(2) and (b)(1), as well as new claims to address a private right of action under the Cable Act provisions alleged in the initial complaint. PSMF ¶ 98; DRPSMF ¶ 98. On May 27, 2009, this Court dismissed OneLink’s complaint for lack of standing. DSMF ¶ 61; PRDSMF ¶ 61. On June 11, 2009, OneLink sent a letter to the U.S. Attorney for the District of Puerto Rico stating that “Judge Gelpi issued a decision finding that a private right of action to enforce the law does not exist. Therefore under the circumstances discussed [in the letter] the U.S. Attorney[’]s Office is the only entity capable of enforcing the law.” PSMF ¶ 99; DRPSMF ¶ 99. Six days later, on June 17, 2009, OneLink appealed to the First Circuit, arguing there was a private right of action to enforce § 541(b)(1) of the Cable Act. PSMF ¶ 100; DRPSMF ¶ 100. On July 15, 2010, the First Circuit affirmed this Court’s decision, concluding as a matter of first impression that OneLink lacked standing to bring its claim under the Cable Act. DSMF ¶ 61; PRDSMF ¶ 61. b. Section 1983 and Cable Act Suit On November 29, 2011, OneLink, with Choice Cable (Choice) as a co-plaintiff, filed another federal lawsuit against PRTC, alleging violations of 42 U.S.C. § 1983 and the Cable Act., PSMF ¶¶101, 102, 123; DRPSMF ¶¶ 101; 102, 123. OneLink filed its § 1983 action because, in its view, PRTC was constructing a cable plant illegally using cross-subsidized funds; OneLink’s complaint asserted as an additional basis the TRB’s November 8, 2011 decision to, “at Defendant Torres’ urging, suddenly and without explanation vote[] to eliminate the November 2, [2011] Order and grant PRTC a radically different franchise.” PSAMF ¶ 29; DRPSAMF ¶ 29. OneLink argued the TRB’s November 2011 Order granting PRTC’s franchise application “depriv[ed] Plaintiffs [OneLink and Choice] of their federally protected property rights, thus violating Plaintiffs’ due process rights under the U.S. Constitution.” PSMF ¶ 125; DRPSMF ¶ 125. At the same time, OneL-ink filed a Motion for a Temporary Restraining Order (TRO) and Preliminary Injunction asking to stay the Order approving PRTC’s Franchise Application. PSMF ¶ 103; DRPSMF ¶ 103. On December 2, 2011, the TRB agreed (i) not to approve a franchise agreement with PRTC until January 31, 2012, and (ii) “to provide Plaintiffs with no less tha[n] seven (7) days notice before they take any action with respect to approving a franchise agreement for PRTC” in exchange for the agreement by OneLink and Choice to withdraw them request for a TRO. PSMF ¶ 103; DRPSMF ¶ 103; DSMF ¶ 63; PRDSMF ¶ 63. On February 1, 2012, the TRB approved PRTC’s Franchise Agreement. PSMF ¶ 105; DRPSMF ¶ 105. On February 2, 2012, the Court dismissed OneLink’s and Choice’s lawsuit under the Cable Act based on the Younger abstention and ripeness doctrines. PSFM ¶¶ 106,124; DRPSMF ¶¶ 106,124. c. Puerto Rico Telecommunications Act Complaint On July 15, 2009, OneLink filed a state court lawsuit alleging that PRTC violated the Puerto Rico Telecommunications Act by illegally building a cable system, and requested a preliminary injunction. PSMF ¶ 17; DRPSMF ¶ 17. On August 26, 2009, the Puerto Rico Court of First Instance dismissed OneLink’s lawsuit for lack of jurisdiction and failure to exhaust its administrative remedies. PSMF ¶ 107; DRPSMF ¶ 107. On September 4, 2009, OneLink appealed to the Puerto Rico Court of Appeals. PSMF ¶ 108; DRPSMF ¶ 108. On January 28, 2010, the Court of Appeals affirmed the decision of the Court of First Instance, agreeing that OneLink failed to exhaust its administrative remedies and before filing its lawsuit “should have initially requested the Board to put into effect the cease and desist order.” PSMF ¶ 109; DRPSMF ¶ 109. On February 25, 2010, OneLink petitioned for certiorari to the Supreme Court; on August 20, 2010, the Supreme Court denied the petition for certiorari. PSMF ¶ 110; DRPSMF ¶ 110. 7. Administrative Agency Actions After OneLink lost its second federal Cable Act case before this Court, on June 11, 2009, and on July 13, 2009, OneLink petitioned the United States Attorney for the District of Puerto Rico (U.S. Attorney) and the Federal Communications Commission (FCC), respectively, claiming that PRTC’s construction of a cable system without a franchise was a violation of the federal Cable Act; sometime on or before October 29, 2009, OneLink petitioned the Puerto Rico Department of Justice Office of Monopolistic Affairs (OMA) to initiate proceedings regarding unfair competition and PRTC’s alleged illegal deployment of a video network. PSMF ¶¶39, 112; DPRSMF ¶¶ 39,112. First, two weeks after this Court dismissed OneLink’s initial Cable Act case, on June 11, 2009, OneLink petitioned the United States Attorney for the District of Puerto Rico, contending that PRTC had committed “serious, repeated and longstanding violations of federal law.... We therefore write to urge your office to investigate PRTC’s violations [of § 541 of the Cable Act] and take quick action to address them.” PSMF ¶ 113; DRPSMF ¶ 113. After a meeting with the U.S. Attorney’s Office on June 12, 2009, and m response to a request from the U.S. Attorney, on June 22, 2009, OneLink sent another letter to further explain and supply evidence of PRTC’s alleged illegal construction activities; in the letter OneLink asked the U.S. Attorney’s Office to “utilize its greater resources and authority both to prevent any further illegal construction by PRTC.” PSMF ¶ 114; DRPSMF ¶ 114. On July 13, 2009, OneLink forwarded, inter aha, its June 11, 2009 and June 22, 2009 letters to the U.S. Attorney’s Office to the FCC. PSMF ¶ 116; DRPSMF ¶ 115. Sometime on or before October 29, 2009, OneLink’s representatives asked the OMA to investigate PRTC for violation of the Puerto Rico Telecommunications Act. PSMF ¶ 117; DRPSMF ¶117. The OMA initiated an investigation into PRTC’s possible violations. of the Puerto Rico Telecommunications Act and served a subpoe-on PRTC. DSMF ¶ 66; PRDSMF ¶ 66. The OMA never pursued an administrative proceeding in response to OneLink’s petitioning of it to investigate PRTC.’ PSMF ¶¶23, 118; DRPSMF ¶¶23, 118. 8. OneLink’s Subjective Motive and Intent After PRTC filed its 2008 franchise application, OneLink contracted with Alvaro Pilar—who provided consulting services to OneLink relating to the marketing, sale, and provision of Video Services—for an overview of IPTV, how it works, and to better understand what PRTC may or may not do regarding IPTV. PSMF ¶ 2; DRPSMF ¶ 2. In his overview, Mr. Pilar informed OneLink that “[cjustomers find a single source for both high-speed data and digital video services very attractive” and that telephone companies “suffer because they have not been able to offer an equivalent triple play alternative,” while also informing OneLink that the TRB “supports competition in the cable market.” PSMF ¶ 3; DRPSMF ¶3. Mr. Pilar’s overview concluded: the “so-called ‘triple play’ of voice, video and data should be the ‘holy grail’ for PRTC, who need to compete with the cable companies, which already [offer] all three services.... Either way, under normal conditions, IPTV should spark a price war between the cable operators and PRTC. Under a competitive market scenario, service providers, including, cable, satellite, and telcos will be getting very aggressive about the pricing game. In their quest to increase their customer base, service providers will offer triple play packages with a very thin profit margin. Although this strategy may be successful in gaining customer traction, it will not be profitable in the long run. Based on the technical requirements, capital outlay and economies of scale, PRTC cannot launch a competitive IPTV product in the island. They will probably spend a considerable amount of time and money trying to become cable moguls, until they figure out that it does not make sense. The only upside for them is that they should be able to upgrade their data network for higher internet speeds., PSMF ¶ 4; DRPSMF ¶ 4. On February 9, 2008, Ron Dorchester, CEO of OneLink, ordered his CFO and General Manager to prepare an analysis for the Board of Directors of the potential impact of PRTC’s entry into IPTV on OneLink. PSMF ¶ 10; DRPSMF ¶10. Mr. Dorchester instructed his CFO and General Manager to presume: (i) PRTC will “take 10,000 video subs from us between June and December,” (ii) “we reduce our prices [by $20 per month] to compete against the IPTV Claro offerings, and (iii) the “Doomsday” scenario wherein “despite reducing our prices and ARPU by $20 a month per sub we still lose the subs.” PSMF ¶ 11; DRPSMF ¶ 11. Mr. Dorcheste