HomeMy WebLinkAboutTracFone Opposition to Renton Motionfor Partial SJ1
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 1
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
RE: TracFone Wireless, Inc. Administrative Appeal
TRACFONE’S OPPOSITION TO RENTON’S MOTION FOR PARTIAL SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED
INTRODUCTION
This case is an appellate review of a tax assessment issued by Tax Recovery Services,
LLC (“TRS”), a contingent fee auditor authorized by the City of Renton (“City”) to audit
TracFone. Yet the City’s motion for partial summary judgment is not based on the audit record
(the complete production of which is the subject of TracFone’s pending Motion to Compel).
Instead the City relies on declarations from two “witnesses” who did not conduct the audit.
Those declarations do not present admissible evidence founded on the declarants’ personal
knowledge. Rather, they present disputed conclusionary assertions and legal opinions about
the meaning of contracts and other documents that were not part of the audit record. The City
has thus failed to meet its burden of showing the absence of material facts, with all evidence
construed in the light most favorable to TracFone.1
1 The testimony of Garth Aspaugh and most of the exhibits to both declarations are the subject of TracFone’s
Motion to Preclude the Testimony of Garth Ashpaugh and Motion to Preclude the Introduction of Certain
Exhibits.
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 2
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
This case involves two main issues. The first, a legal issue addressing the “incident”
of (i.e. identifying the activities that are subject to) the tax. The second, primarily a factual
issue, addressing the measure of tax.
As to the first issue, while TracFone’s Motion for Summary Judgment presents legal
argument and cites case law and other authorities in support of its construction of the
controlling statutes, the City’s Motion for Partial Summary Judgment is devoid of both,
limited to assertions about the ultimate legal conclusion and references to legislative history.
The City’s conclusory assertions are wholly inadequate to meet its summary judgment burden.
And its references to legislative history are either irrelevant—if the statute is unambiguous (as
TracFone contends)—or insufficient, if the statute is ambiguous since ambiguous tax statutes
are “construed most strongly against the government and in favor of the taxpayer.” Qwest
Corp. v. City of Bellevue, 161 Wn.2d 353 (2007) (internal citations omitted) (striking city
utility taxes assessed beyond the scope of the taxing authority granted by RCW 35A.82.060).
As to the second issue, even if the sale of prepaid wireless airtime by a person who is
not a network carrier were subject to city utility tax (which it is not), the assessment that TRS
issued against TracFone was improperly measured by TracFone’s wholesale sales of prepaid
wireless airtime. Wholesale sales, or sales “for the purpose of resale,” are specifically excluded
from the legislative grant of city taxing authority. RCW 35A.82.060.
Despite claiming to “reserve[] for hearing” the “amount of telephone utility tax” due,
the City’s motion argues that the City is not prohibited from measuring the tax by TracFone’s
wholesale sales of airtime on the theory that either (a) they are not in fact wholesale sales to
the businesses that resell the airtime but are instead “indirect” retail sales “through various
retailers (e.g. Walgreens, 7-Eleven, Walmart, etc.), City Mot. at 3 (emphasis added); or (b)
they are not actually sales of airtime but are instead merely sales of worthless “plastic cards.”
City Mot. at 16. Both these theories are wrong. They are directly contrary to the well-
developed facts in this case, the findings of a trial court, the plain language of Washington
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 3
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
statutes, and the receipts that Fred Meyer issued to Nate Malone when Fred Meyer made a
retail sale of prepaid wireless airtime to him in September 2020, nearly a year after this appeal
was filed.
EVIDENCE RELIED UPON
TracFone relies on the declarations and accompanying exhibits of Chesley Dillon, Scott
Edwards, and Grant Degginger filed January 29, 2021, together with the Second Declarations,
and accompanying exhibits of Chesley Dillon and Grant Degginger filed herewith.
COUNTERSTATEMENT OF FACTS
A. TracFone’s Business Activities.
TracFone is a non-facilities-based seller of prepaid wireless airtime. TracFone
purchases wireless airtime from facilities-based carriers such as Verizon, T-Mobile, Sprint,
and AT&T and resells the airtime on a prepaid basis at retail (to consumers) and at wholesale.
TracFone’s wholesale sales are to both retailers—such as Walmart, Fred Meyer and Target—
and to distributors—that is, businesses who themselves resell the airtime at wholesale, either
to retailers or to other distributors. First Declaration of Chesley Dillon, ¶¶ 2-5, 8.
The graphic below depicts TracFone’s wholesale purchases of airtime from network
carriers and resale of airtime at both wholesale and retail:
TracFone does not have any physical stores. TracFone’s retail sales of prepaid airtime
are made via the internet and/or by calling a toll free (1-800) number. Id. ¶¶ 6-7. TracFone
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 4
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
collects Washington sales tax and Washington E-911 tax on its Washington retail sales of
prepaid airtime. Second Declaration of Chesley Dillon, ¶ 19. TracFone does not collect
Washington sales tax and Washington E-911 tax on its wholesale sales of prepaid airtime.
Second Dillon Decl., ¶ 20.
TracFone’s wholesale sales of prepaid airtime are made at wholesale prices, meaning
that the amount TracFone charges wholesale customers is less than the suggested retail price.
First Dillon Decl., ¶ 9. As a hypothetical example, if TracFone sold a 30-day unlimited airtime
card at retail for $30 dollars on its website, it would sell a 30-day unlimited airtime card to a
retailer (e.g., Walmart or Fred Meyer) for a lower, wholesale price (e.g., $24). Id. ¶ 11.
TracFone’s wholesale sales of prepaid wireless airtime are sales of airtime, not sales of
“plastic cards” (tangible personal property). Second Dillon Decl., ¶ 7. Consequently, the
revenue from TracFone’s wholesale sales of prepaid wireless airtime is accounted for in
TracFone’s financial statements as airtime revenue, not as revenue from the sale of tangible
personal property. Id., ¶ 8. TRS never asked how TracFone accounts for wholesale sales of
prepaid airtime. Id., ¶ 9.
B. The TRS Audit.2
TRS audited TracFone on behalf of Renton from June 2013 to August 2017, through
its principals Michael and Tamara Crisp. Renton did not participate in the audit but relied on
and trusted TRS. Edwards Decl., Ex. 110; Deposition of Jan Hawn, Second Degginger Decl.,
Ex. 9 at 48. After submitting its final “draft” of the audit schedules to the City (and without
receiving any questions or comments from the City about the proposed assessment), TRS asked
to “hold off a little while” before issuing the assessment. Edwards Decl., Ex. 18. TRS later
explained to the City that “TRS is waiting to see how a certain court case turn [sic] out that
would affect this audit.” Id., Ex. 26. In that case, TracFone Wireless, Inc. v. City of
2 Some of the myriad problems with TRS’s conduct of the audit, the quality of TRS’s work, and TRS’s alterations
to and failure to produce the full audit record are discussed in TracFone’s own motion for summary judgment as
well as in TracFone’s motion to compel, they are not reproduced here.
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 5
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
Springfield, the court found, following a two-day trial, that TracFone’s sales to retailers were
“legitimate wholesale sales” that were not subject to city utility tax. 557 S.W.3d 439, 446 (Mo.
Ct. of Appeals 2018). Second Dillon Decl., ¶ 13. Thus, the Springfield court struck down that
portion of the city’s assessment utility that was measured by TracFone’s wholesale sales of
airtime. 557 S.W.3d at 449.
Yet TRS did not reduce its draft assessment to remove wholesale sales from the
measure of tax in accordance with the Springfield case that TRS had previously told the City
would “affect this audit.” Rather, in February 2019, after the Springfield decision had become
final, TRS recommended that the City authorize TRS to proceed with issuing the assessment
as prepared more than 18 months earlier because “[i]t turns out [Springfield’s] code (seen
below) is very narrow,” and quoted Springfield’s allegedly narrow ordinance, which imposes
tax on “[e]very person engaged in the business of supplying telephones and
telecommunications and telephonic service and telecommunications services.” Ex. 38 to the
Michael Crisp Deposition (emphasis added) (submitted as Edwards Decl. Ex. 38). The next
day, the City authorized TRS to “move forward with issuing the assessment.” Edwards Ex.
39. TRS issued the assessment on TRS letterhead on February 19, 2019. Edwards Ex. 40.
C. The City’s post-appeal activities.
When TRS’s February 14, 2019 assessment became final, TracFone filed the instant
appeal on November 6, 2019, paying the assessment as a required by ordinance as a condition
to appeal.
On September 15, 2020, nearly a year after TracFone filed the pending appeal, while
the City continued to struggle with producing the record of TRS’s audit for the Hearing
Examiner’s review, Nate Malone, Renton’s tax and license manager, purchased a TracFone
branded handset and an active TracFone branded prepaid airtime card from a local Fred Meyer.
Second Degginger Decl. Ex. 8 at 91.
Around the same time, the City hired Garth Ashpaugh, a Florida CPA with no prior
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 6
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
knowledge of or experience with applying Washington state utility tax statutes to prepaid
wireless service, to provide an “expert” legal opinion about the application of Washington
statutes to TracFone’s “business model.” Ashpaugh admitted in his deposition that he is not
an expert on Washington tax law. Second Degginger Decl., Ex. 7 at 46, ll. 13-16.
Neither Malone nor Ashpaugh conducted the audit that is the subject of this appellate
review. TRS did. Neither Malone nor Ashpaugh have ever communicated with TracFone.
Their “knowledge” of TracFone’s business activities comes from attempting to interpret some
contracts, internet “research,” and Malone’s post-appeal retail purchase of prepaid wireless
airtime from Fred Meyer. The “facts” that they assert in their declarations are in reality
opinions based on their efforts to interpret contracts that were not part of the audit record, and
were not considered by either TRS is preparing the assessment or by the City in authorizing
TRS to issue the assessment. These defects are addressed in part in TracFone’s pending
Motion to Preclude Testimony of Garth Ashpaugh and Motion to Preclude the Introduction of
Certain Exhibits.
COUNTERSTATEMENT OF ISSUES
1. Whether RCW 35A.82.060 authorizes the imposition of city utility tax on the
sale of prepaid wireless airtime by a person who is not a network carrier? No.
2. If RCW 35A.82.060 does authorize the imposition of city utility tax on sales of
prepaid wireless airtime by persons who are not network carriers, whether RCW 35A.82.060
prohibits measuring city utility tax by sales of prepaid wireless airtime to wholesale buyers
who purchase prepaid wireless airtime for the purpose of resale? Yes.
LEGAL ARGUMENT
A. Standard of Review.
Summary judgment is appropriate where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. CR 56(c); Keck v. Collins, 184
Wn.2d 358, 370 (2015). “In a summary judgment motion, the moving party bears the initial
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 7
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
burden of showing the absence of an issue of material fact,” with all evidence construed in the
light most favorable to the nonmoving party. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225
(1989); see also Jacobsen v. State, 89 Wn.2d 104, 108-109 (1977).
To meet this burden, the moving party “may not rely on mere allegations, denials,
opinions, or conclusory statements but, rather must set forth specifics.” Allen v. Asbestos
Corp., Ltd., 138 Wn. App. 564, 570 (2007) (quoting Int'l Ultimate, Inc. v. St. Paul Fire &
Marine Ins. Co., 122 Wn. App. 736, 744 (2004)). Thus, an expert opinion “that is only a
conclusion or that is based on assumptions does not satisfy the summary judgment standard.”
Blum v. Our Lady of Lourdes Hosp. at Pasco, 176 Wn. App. 1012 (2013) (citing John Doe v.
Puget Sound Blood Ctr., 117 Wn.2d 772, 787 (1991)); see also Hash by Hash v. Children’s
Orthopedic Hosp. and Medical Center, 110 Wn.2d 912, 915-16 (1988); Parkin v. Colocousis,
53 Wn. App. 649, 651-52 (1989).
“If the moving party does not sustain its burden, summary judgment should not be
granted, regardless of whether the nonmoving party has submitted affidavits or other evidence
in opposition to the motion.” Hash by Hash, 110 Wn.2d at 915; see also Gibson v. City of
Spokane Valley, 176 Wn. App. 1019 (2013) (reversing summary judgment for defendant where
defendant “failed to sustain its [initial] burden of offering factual evidence showing that it was
entitled to judgment as a matter of law”).
In Graves v. P.J. Taggares Co., 94 Wn.2d 298 (1980), for example, the Supreme Court
held that the moving party failed to meet its burden where it relied on an affidavit that “asserted
that the relationship [between defendant and plaintiff] was one of agency as a matter of law,”
but did not contain facts to support this legal conclusion. Id. at 302-3. Similarly, in Hash by
Hash, our Supreme Court found that summary judgment was improper where “the [expert]
affidavits upon which the trial court relied … did not provide specific facts showing how
[plaintiff’s injury] occurred.” 110 Wash.2d at 915-916. And in Parkin, the Court of Appeals
reversed an award of summary judgment for defendant that was based on a “conclusory and
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 8
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
insufficient” expert declaration, which lacked concrete facts and “[did] little more than state
the legal conclusion that [defendant] was not negligent.” 53 Wn. App. at 651-52.
As explained in detail in Section D, below, the Malone and Ashpaugh declarations
submitted by the City are insufficient to support summary judgment because they are replete
with inappropriate and unsupported legal conclusions and lack specific material facts based on
personal knowledge. Both declarations improperly opine on the ultimate legal questions of
whether TracFone is a “telephone business” that provides “access to a local telephone network”
(Malone Decl., ¶ 8; Ashpaugh Decl., ¶ 15), and also attempt to interpret and analyze TracFone
contracts (Malone Decl., ¶¶ 11-12; Ashpaugh Decl., ¶¶ 4-12). Such legal argumentation is not
the proper subject of a lay or expert declaration.3
Moreover, neither declaration contains sufficient factual detail to support the
conclusions reached by the declarants. Malone attests that his knowledge of TracFone’s
business is grounded in “[1] [his] review of documents related to the Renton Tax Audit of
TracFone, [2] information available in the public domain, and [3] [his] personal experience as
a TracFone end user.” Malone Decl., ¶ 8. But Malone fails to specify which documents
“related to” the audit that he reviewed, nor does he describe whether any of the information
allegedly in the public domain was included in the audit file record. He testified that his
internet research about TracFone was not included as part of the audit file. Malone Dep. P.89;
L. 15-21, Ex. 8 to the Second Degginger Declaration. Also, it merits noting that Malone does
not state that his knowledge of TracFone’s business activities comes from firsthand
communication with TracFone—nor could he, since he has never spoken to anyone from
TracFone. Moreover, he—along with his supervisor, Ms. Hawn, and TRS–declined a request
by TracFone for a meeting to discuss TracFone’s concerns about the audit methodology.
Malone Dep., Ex. 8 to the Second Degginger Declaration at P.52; L.5-53: L.6. Finally, it
3 A declaration is to be disregarded to the extent it contains legal conclusions. Orion Corp. v. State, 103 Wn.2d
441, 461-62 (1985). “The interpretation of an unambiguous contract is a question of law.” Stranberg v. Lasz, 115
Wn. App. 396, 402 (2003) (citing Mayer v. Pierce County Med. Bureau, Inc., 80 Wn. App. 416, 420 (1995)).
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 9
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
should be emphasized that Malone’s personal experience—as per his declaration—provides
no basis for his unwarranted legal conclusions. Malone Decl., ¶¶ 8-10.
As for Ashpaugh, his purported understanding of TracFone’s business is apparently
based on his “audits of other prepaid companies like TracFone …, namely Cricket and
NextTel (d/b/a Boost) for Lincoln, Nebraska,” Ashpaugh Decl., ¶ 3 (emphasis added), and his
own improper interpretation of TracFone contracts, id. at ¶¶ 4, 10-12. These declarations
contain virtually no relevant material that is properly considered at summary judgment.
B. TracFone cannot provide “access to a telephone network” within the meaning of the controlling statutes because it is not a network carrier.
Cities do not have plenary taxing authority. Rather, “[m]unicipalities must have
express statutory authority to levy taxes.” City of Seattle v. T-Mobile Mobile West Corp., 199
Wn. App. 79, 82 (2017). With respect to telephone utility taxes, cities’ taxing authority is
expressly proscribed by statute. Id. There are two identically-worded statutes controlling cities’
authority to impose telephone utility taxes. RCW 35.21.714 applies to charter cities, like
Seattle, while RCW 35A.82.060 applies to code cities, like Renton. See Qwest Corp. v. City
of Bellevue, 161 Wn.2d 353, 363 n. 12 (2007) (noting that the two statutes are otherwise
identical).
It is undisputed that RCW 35A.82.060 authorizes cities to impose tax on “the business
activity of engaging in the telephone business,” as defined in RCW 82.16.010. It is also
undisputed that RCW 82.16.010(7)(b)(iii) defines “telephone business” as “the business of
providing network telephone service” and that RCW 82.16.010(7)(b)(ii) defines “network
telephone service” in relevant part as “providing … access to a telephone network.” Compare
TracFone Summary Judgment Mot. at 12 and City Mot. at 9-10, quoting these statutes.
As discussed in TracFone’s motion for summary judgment at pp. 12-14, principles of
statutory construction that require interpreting statutes in context and to give effect to all of the
words used by the legislature confirm that only network carriers—that is, the companies that
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 10
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
own, operate, and manage the telephone networks—provide “access to a telephone network”
within the meaning of RCW 35A.82.060 and RCW 82.16.010. In other words, only network
carriers provide access to their telephone networks, and resale of a network carrier’s wireless
airtime does not constitute providing “access to a telephone network” within the meaning of
RCW 35A.82.060 and 82.16.010. The carrier is the one providing the access, not the reseller.
Because TracFone is not a network carrier, but only resells network carriers’ airtime,
TracFone’s sales of prepaid wireless airtime are not subject to Renton utility tax.
1. The City does not present an alternative construction of the controlling statutes.
The City’s motion for partial summary judgment quotes RCW 35A.82.060, City Mot.
at p. 9-10, as well as the definitions in RCW 82.16.010(7)(b)(ii)-(iii), City Mot. at 11-12. But,
in stark contrast to TracFone’s motion, the City does not discuss principles of statutory
construction and does not present any legal argument regarding the construction of the statute.
Rather, the City’s motion simply makes the conclusory assertion that “TracFone clearly
engages in telephone business when it provides its end users “access to a telephone network,”
thereby enabling telephonic communication.” City Mot at 12. That contention is insufficient
to support summary judgment. Court’s do not consider “conclusory allegations” that are not
supported by cogent legal argument and citations to relevant authority. 4 Harbord v. Safeway,
Inc., 195 Wn. App. 1012, at *6 (2016) (citing Saunders v. Lloyd’s of London, 113 Wn.2d 330,
345 (1989)).
The City also contends that TracFone provides “access to a telephone network” within
the meaning of RCW 35A.82.060, because in TracFone Wireless, Inc. v. Dep’t of Revenue,
170 Wn.2d 273, 278-80 (2010), the court said that “TracFone sells cell phones and prepaid
wireless telephone services.” City Mot. at 13. That statement does not attempt to construe
RCW 35A.82.060. Nor does it address the legal issue in this case: whether sales of prepaid
4 The City’s “argument” that “TracFone meets the definition of a telephone business” is in Section D.1 of its
motion at pp. 11-13. It consists of quoting the various statutory definitions and making conclusory assertions.
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 11
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
airtime by persons who are not network carriers fall within the definition of “network telephone
service” in RCW 82.16.010. The very next sentence in that case accurately states that
TracFone “does not own or operate any network facilities,” and so must purchase airtime from
network carriers and “resell[] service offered by more than 45 licensed network” carriers. Id.
Neither of those factual statements have any bearing on the statutory interpretation question
presented by this case. That E-911 tax case did not consider statutory definitions of “telephone
business” or “network telephone service” and certainly did not address the construction of the
phrase “access to a telephone network.
a. The Legislature’s allegedly “broad” intent in 1981 when expanding a subsequently repealed state public utilities tax, does not support a legal argument regarding the construction of city utility taxing authority in RCW 35A.82.060
The closest the City comes to making a legal argument construing the taxable incident
authorized by RCW 35A.82.060 is its contention that the statute provides a “broad” grant of
authority. City Mot. at 9. In support of this proposition, the City quotes part of an uncodified
legislative statement in Laws of Washington 1981, ch. 144, from a footnote in Western
Telepage v. City of Tacoma, 140 Wn.2d 599, 603 n.2 (2000).5 City Mot. at 9. The substantial
number of amendments to RCW 35A.82.060, RCW 82.16.010 and RCW 82.04.065 in the
intervening forty years since 1981, and the judicial interpretations of them, have significantly
changed the law.
Two years after this uncodified statement, in 1983, the definitions of “telephone
business” and “network telephone service” were moved from RCW 82.16.010 (Ch. 82.16 is
5 The City is relegated to quoting legislative history of a 1981 bill from a footnote in Western Telepage with the
preface “see, e.g.” because the issue in Western Telepage is entirely unrelated to this case. The question in
Western Telepage was whether paging service (a service that has virtually disappeared in the 20 years since that
case), was subject to city utility tax. The Court said “[t]he basic question in this case is whether the definition of
“pager services” in TMC 6.67.020 is consistent with the statutory definition of telephone services in RCW
82.04.065.” 140 Wn.2d at 607-08. The Court concluded that Western Telepage’s paging service, which involved
Western Telepage’s transmission of data by microwave, fell squarely within the “plain language” of the statutory
phrase “transmission of telephonic, video, data or similar communication by telephone line or microwave.” Id.
at 609 (emphasis added). The Court found no support in the plain language of that phrase for Western Telepage’s
proposal to read into the statute a non-existent requirement for “two-way” transmission. Id. at 611.
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 12
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
the utility tax chapter) to the newly created RCW 82.04.065 (Ch 82.04 is the B&O tax chapter;
retailing B&O and the sales tax, Ch. 82.08, are administered co-extensively). Laws of
Washington 2nd ex. Sess. Ch. 3. Prior to the breakup of AT&T, telephone companies were
subject to state utility tax. As the Western Telepage Court explained, the 1981 bill cited in the
footnote quoted by the City expanded the scope of the “state public utilities tax” then imposed
on telephone companies. 140 Wn.2d at 603. However, following the breakup of AT&T in
1983 and the creation of the so-called “Baby Bells,” the Legislature repealed the state public
utilities tax on telephone companies, and imposed sales tax on telephone calls. 1983 Laws of
Washington 2nd ex. Sess. Ch. 3.
More than a quarter century later, in 2007, to conform with the Streamlined Sales and
Use Tax Agreement (“SSUTA”), the Legislature moved the definitions of “telephone
business” and “network telephone service” back to RCW 82.16.010, while adopting a number
of new telephone related definitions in RCW 82.04.065. The Legislative history of the
expansion of state public utility taxes taxation of telephone companies in 1981 is irrelevant to
the construction of RWC 35A.82.060 in effect during the audit period.
The City also erroneously argues that “Renton Has Taxing Authority to Impose a 6%
Utility Tax on all Businesses,6 and the Proper Tax Measure is 100% of Gross Income from All
Sources” (City Mot. pp. 7-10) (emphasis added). The City’s claim to have the authority to tax
“100% of gross income from all sources” is flatly contradicted by the plain language of RCW
35A.82.060, which expressly limits the measure of tax to “gross revenue derived from
intrastate toll telephone service.” RCW 35A.82.060, quoted in City Mot. at 9 (emphasis
City’s). In this regard, the scope of the City’s taxing authority is established by statute, not by
its ordinance.7
6 It is undisputed that RCW 35A.82.060 authorizes cities to impose utility tax on persons “engaged in the
telephone business,” but the term is defined by statute. The question is what activities fall within the statutory
definition, which is a question of statutory construction that the City does not address.
7 As Mr. Malone has admitted:
A. Okay. Where in the Renton utility tax ordinance does it state that revenue from sales or resale are
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 13
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
b. The Declarations of Nate Malone and Garth Ashpaugh are neither evidence nor authority regarding the construction of the controlling statutes.
In his declaration, Malone opines that TracFone is a “telephone business” that
“provides access to a local telephone network,” “as those terms are defined by RMC 5-11-1.”
Malone Decl., ¶ 8. Similarly, Ashpaugh’s attests that in his “expert opinion,” TracFone “is
properly taxable as a telephone business … per RCW 82.16.010(7)(b)(iii) and (b)(ii)) … .”
Ashpaugh Decl., ¶ 15. As noted above, it is the role of the tribunal—and not declarants—to
address and resolve legal questions. 5B Wash. Prac., Evidence Law and Practice § 704.5 (6th
ed.). Neither Malone nor Ashpaugh is a lawyer, and neither supports his amateur legal analysis
with reference to legal sources. Their declarations carry no weight on these questions. Orion
Corp., 103 Wn.2d at 461-62; see also Keates v. City of Vancouver, 73 Wn. App. 257, 265,
review denied, 124 Wn.2d 1026 (1994) (“Legal conclusions [in an affidavit] are disregarded
for the purposes of a summary judgment motion”).
The City also relies on the Declaration of Garth Ashpaugh for the proposition that
TracFone is engaged in activities the City has been authorized to tax by RCW 35A.82.060, on
the theory that “TracFone is recognized as a telecommunications company by the Federal
Communications Commission (‘FCC’) and is subject to FCC regulation as such.” City Mot.
at 14, citing Ashbaugh Decl. ¶14 and Ex. 5 (“emphasis added).
This conclusory assertion is wholly unrelated to the statutory definitions of “telephone
business” and “network telephone service” in RCW 82.16.010, which are surprisingly absent
exempt from the tax?
A. I don’t think that there’s a specific cite for that. I do not believe it contains that language.
Q. So without those limitations, it would appear that the Renton utility tax is attempting to tax
activities that are exempt under the state statute; is that right?
MS. SAND: Object to the extent that calls for a legal conclusion
Go ahead and answer, Nate.
THE WITNESS: I think at its face it could be construed that way, in which case the
controlling statute, RCW 35A.82.060, would be the controlling statute as to what we can apply to the utility tax
to.
Second Degginger Decl., Ex. 8, at pp. 118-119
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 14
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
from the City’s argument. Whatever the City may be trying to infer about FCC “recognition,”
the reality is that TracFone is not licensed by the FCC. Second Dillon Decl. ¶ 25. Ironically,
Exhibit 5 to the Ashbaugh declaration is merely a collection of public comments submitted by
TracFone to the FCC in response to an FCC Notice of Proposed Rulemaking. Moreover,
TracFone’s comments reaffirm that TracFone is a non-facilities-based reseller of wireless
airtime.
Nor is Exhibit 5 one of the FCC filings Ashpaugh identified in his deposition as a
document he had reviewed. The document produced at his deposition was a Public Notice
seeking comment on TracFone’s petition seeking forbearance from the FCC limitation that
only facilities-based companies were eligible to participate in the Lifeline program, a federal
program that subsidizes the cost of telephone service for low-income consumers. Second
Degginger Decl., Exs. 11 and 12. Ironically, the FCC filings reviewed by Ashpaugh reflect
that the FCC distinguishes between facilities-based network carriers (who must be licensed by
the FCC) and non-facilities-based resellers, such as TracFone, who are not licensed by the
FCC. However, FCC regulations are irrelevant to the proper construction of Washington
statutes, which use terms defined by the Washington legislature.
2. Even if Renton had successfully presented a reasonable alternative construction of RCW 35A.82.060, the resulting ambiguity would be construed against Renton and in favor of TracFone.
Renton’s position also inconsistent with the binding precedent of the Washington
Supreme Court. In Qwest v. City of Bellevue, 161 Wn.2d 353 (2007), the Supreme Court
reaffirmed several relevant provisions of statutory construction; construction of a statute
focuses on the plain meaning of the words enacted by the Legislature, legislative history is
not to be considered unless the statute is ambiguous, and “[a]mbiguities in taxing statutes are
construed ‘most strongly against the government and in favor of the taxpayer.’” Id. at 364
(citing Estate of Hemphill v. Dep’t of Revenue¸153 Wn.2d 544 (2005) (quoting Dep’t of
Revenue v. Hoppe, 82 Wn.2d 549, 552 (1973)).
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 15
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
B. If the sale of prepaid wireless airtime by persons other than network carriers constitutes “network telephone service,” then TRS’s assessment improperly measured the tax on sales of network telephone service purchased for the purpose of resale in direct contravention of RCW 35A.82.060.
While the first issue presents a pure question of law (construction of statutes), the
second issue is predominantly a question of fact. If the Hearing Examiner concludes as a
matter of law that the sale of prepaid wireless airtime by a person who is not a network carrier
constitutes network telephone service, TracFone’s wholesale sales are expressly precluded
from the measure of tax. RCW 35A.82.060 unambiguously prohibits the City from measuring
the tax by “charges for network telephone service for the purpose of resale.” Under the
statute’s plain language, TracFone’s wholesale sales of prepaid wireless airtime to distributors
and retailers are sales “for the purpose of resale.” TracFone’s wholesale customers provide
TracFone with resale certificates certifying that they are purchasing prepaid wireless airtime
for the purpose of resale. First Dillon Decl., ¶¶ 4-5, and Ex. I; Second Dillon Decl. ¶ 17.
1. The City’s contention that TracFone’s wholesale sales of prepaid airtime are instead “indirect” retail sales by TracFone “through” retailers acting as TracFone’s “retail agents” is legally wrong, factually wrong, and unsupported by admissible evidence.
The City attempts to avoid the plain language of RCW 35A.82.060 by contending that
TracFone’s wholesale sales of prepaid wireless airtime are instead “retail sales … via its retail
agents.” City Mot. at 2. By way of “proof,” the City creating a cartoon graphic with arrows
connecting TracFone and an image labeled “end user.” Both the statement and the cartoon are
factually wrong. Second Dillon Decl. ¶¶ 4-5. TracFone’s resale of prepaid wireless airtime
is more accurately depicted in the graphic embedded above at p. 3.
The City’s characterization of independent, third-party as TracFone’s “retail agents” is
based on improper assertions in the Declaration of Garth Ashpaugh, the deficiencies of which
are discussed both supra at pp. 8-9 and infra at pp. 19-22. This claim is flatly contradicted by
the contracts the City’s non-lawyer witnesses purport to interpret. See Malone Decl., Ex. 6 at
p. 731 (“the relationship between the Retailer and TracFone under this Agreement is one of an
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 16
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
independent contractor”). Thus, it is unsurprising that the Springfield court specifically found
both that TracFone’s wholesale sales of airtime are “legitimate wholesale sales,” and rejected
the City of Springfield’s contention that they were instead “consignment sales.” Second Dillon
Decl., ¶¶ 13-14.
Though it is not clear, the City’s contention that TracFone’s wholesale sales are instead
retail sales through the retailers may be based on the mistaken assertions in the declarations of
Nate Malone and Garth Ashpaugh that prepaid airtime is activated “by TracFone” after the
retail sale. City Mot. at 3-4, citing Declaration of G. Ashpaugh ¶¶ 7, 9, and 12.
The reality is that prepaid wireless airtime is active at the time of retail sale by the retail
seller. Second Dillon Decl., ¶ 11. There simply is no second “step” in the activation process
for sales of prepaid wireless airtime. Id. ¶ 16.
TracFone’s Dillon testified in the two day bench trial in the Springfield case and
explained that TracFone both active and point-of-sale-activation (“POSA”) airtime, invoicing
wholesale sales of the former at time of shipment and invoicing wholesale sales when activated
at the cash register immediately prior to the retailer’s retail sale to a consumer. Id., ¶ 12. At
the conclusion of the trial, after hearing all the testimony, the trial court held that TracFone’s
wholesale sales were “legitimate wholesale sales” of prepaid wireless airtime and rejected the
city’s factual contention that TracFone’s sales to retailers were consignment sales rather than
wholesale sales. Id. ¶¶ 13-14
2. The City’s alternative theory claim, that TracFone’s wholesale sales of prepaid airtime are not sales of airtime but are instead merely sales of “plastic card units” is factually wrong and would be fatal to its position if it were true because income from sales of plastic are not subject to utility tax.
Alternatively, the City argues that the prohibition against measuring utility tax by
“charges for network telephone service purchased for the purpose of resale” does not apply to
TracFone’s wholesale sales of prepaid wireless airtime are not actually sales of airtime at all,
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 17
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
but instead are merely sales of “plastic card units” City Mot. at 16, citing Malone and
Ashpaugh Declarations.
This claim, too, is factually and legally wrong. The reality is that TracFone’s wholesale
sales of airtime are sales of airtime for the purpose of resale. The retailer’s resale of that airtime
is a retail sale of airtime by the retailer to the consumer, as reflected in the plain language of
Washington’s sales tax and E-911 taxes, and by Fred Meyer’s compliance with those statutes
when Fred Meyer made a retail sale of prepaid wireless airtime to the City’s Malone.
Sales tax is imposed on the retail sales. RCW 82.08.020. It is required to be collected
by the retail seller from the consumer. RCW 82.08.050. A retail sale subject to sales tax
include sales of telecommunication services “other than a sale to a person who purchases for
the purpose of resale.” A buyer establishes that it is purchasing for the purpose of resale by
presenting the seller with a resale certificate. WAC 458-20-102A. TracFone does not collect
sales tax on its wholesale sales of airtime, and documents the buyer’s purchase for the purpose
of resale by obtaining resale certificates. Second Dillon Decl. ¶¶ 17. However, when a seller
makes retail sales of prepaid wireless airtime, it is required to collect sales tax on its retail sales
of airtime to consumers.
Like sales tax, E-911 tax is also imposed on retail sales of telephone service. RCW
82.14B.030.8 The E-911 tax is imposed on the “consumer” and is required to be collected
from the “seller” of the “prepaid wireless telecommunications service” in a “retail transaction.”
RCW 82.14B.030(6)(b).
Malone’s September 15, 2020 purchase of prepaid wireless airtime confirms that that
retailer (Fred Meyer, in this particular instance), not TracFone, is the retail “seller” when a
“consumer” (like Malone) buys prepaid wireless airtime sold by the retailer. RCW
82.14B.020(1) defines “consumer” as the “person who purchases a prepaid wireless
8 The E-911 tax was amended by the Legislature in 2013, after the ruling in TracFone v Washington Dep’t
of Revenue 170 Wn.2d 273, 278-80 (2010). The 2013 amendments, in effect throughout the audit period here,
made the E-911 tax a point of sale tax collected from the “consumer” by the “seller” in a “retail transaction.”
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 18
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
telecommunications service in a retail transaction.” A “retail transaction” is defined as the
purchase of prepaid wireless telecommunications service from a seller for any purpose other
than resale.” RCW 82.14B.020(12). Finally, “seller” is defined as “a person who sells prepaid
wireless telecommunications service to another person.” RCW 82.14B.020(14).
Thus, when Malone purchased the airtime card from Fred Meyer, he was the
“consumer” because he purchased the airtime for a purpose other than resale; his purchase was
a “retail transaction,” and Fred Meyer, not TracFone, was the “seller” in that retail transaction.
As reflected by the receipts issued by Fred Meyer, Fred Meyer collected both sales tax and E-
911 tax on its retail sale of prepaid wireless airtime to Malone.
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 19
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
Malone’s assertion in his declaration that his purchase of prepaid wireless airtime from
Fred Meyer was not a retail sale from Fred Meyer is wrong, contrary to his deposition
testimony, inadmissible, and unavailing.9
Moreover, RCW 35A.82.060 limits the measure of utility tax to that portion of a charge
for “network telephone service” that reflects “charges for intrastate toll telephone service.” If
the amounts that wholesale buyers pay to TracFone were not charges for network telephone
service, but instead simply charges for a “plastic card,” then no part of the charge is the portion
of a network telephone service charge for intrastate toll telephone service. The theoretical
inapplicability of the sale for resale provision would be academic, since the charge would not
be subject to tax in any event. In short, RCW 35A.82.060 does not authorize measuring tax
by TracFone’s wholesale sales, whether those wholesale sales are charges for network
telephone service or not.
C. Inadmissibility of declarations
An affidavit in support of summary judgment “shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated therein.” CR 56(e). This is consistent
with the general rule that only admissible evidence may be evaluated in ruling on a motion for
summary judgment, Dunlap v. Wayne, 105 Wash.2d 529, 535 (1986), and with ER 602, which
states that “[a] witness may not testify to a matter unless evidence is introduced sufficient to
9 At his deposition, Mr. Malone testified as follows:
Q: And when you bought it at Fred Meyer in Renton, did you get a receipt?
A: I did.
Q: Was the Receipt from Fred Meyer?
A: Yes.
Q: So the card you bought was purchased from a retailer; correct?
A: It was.
Q: Okay. And did…And so how did the retailer get that card?
A: I would assume that they purchased it from TracFone.
Q: So TracFone was selling to Fred Meyer that card; correct?
A: They would have sold that card to –Fred Meyer.
Q: And Fred Meyer sold it to you, their customer; correct?
A: That’s correct.
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 20
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
support a finding that the witness has personal knowledge of the matter” (emphasis added). In
other words, a party seeking to rely on testimony must build a foundation for the witness’s
personal knowledge. See, e.g., Davis v. City of Seattle, 2008 WL 202708, at *12 (W.D. Wash.
Jan. 22, 2008) (proponent of evidence bears burden of laying foundation).10
In addition, as noted above, an affidavit must be disregarded to the extent it contains
legal conclusions. Orion Corp., 103 Wash.2d at 461-62. In particular, “[expert] opinions on
the ultimate legal issue before the court are not properly considered under the guise of expert
testimony.” Washington State Physicians Ins. Exchange & Ass’n v. Fisons Corp., 122 Wash.
2d 299, 344 (1993) (emphasis in original); see also State v. Olmedo, 112 Wash.App. 525, 532–
33 (2002) (although expert testimony may embrace an ultimate factual issue, experts cannot
opine on the application of law to a particular case); Chester v. Deep Roots Alderwood, LLC,
193 Wash. App. 147, 158 (2016) (affirming exclusion of expert testimony that “both construed
the [applicable] regulation and reache[d] the legal conclusion that the respondents violated the
regulation”); 5B Wash. Prac., Evidence Law and Practice § 704.7 (6th ed.) (“courts will
normally refuse to allow the expert to express an opinion on whether a party violated [a] statute,
ordinance, or regulation”). This rule extends to the interpretation of contracts as well as
statutes and regulations. Stranberg, 115 Wash.App. at 402; see also Wells Fargo Bank N.A. v.
LaSalle Bank Nat. Ass’n, 2011 WL 743748, at *3-4 (D. Nev. Feb. 23, 2011) (excluding expert
testimony construing a contract and giving an opinion based on this reading); U.S. v. Crawford,
239 F.3d 1086, 1090 (9th Cir. 2001) (“[a] lay witness may not … testify as to a legal
conclusion, such as the correct interpretation of a contract”).11
10 In a summary judgment proceeding, if an expert witness’s opinion is offered in the form of an affidavit or
declaration, the factual basis for that opinion must also be explained in the same document. Anderson Hay &
Grain Co., Inc. v. United Dominion Industries, Inc., 119 Wash. App. 249 (Div. 3 2003); see also Lilly v. Lynch,
88 Wash. App. 306 (Div. 2 1997)
11 One reason for this rule is that witnesses are generally unqualified to opine on legal questions. This is
demonstrated by Ashpaugh’s assertion that “[t]he relationship between TracFone and the retailer is more akin to
an agent relationship,” because one TracFone contract refers to a “‘partnership.’” Ashpaugh Decl., ¶ 12.
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 21
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
In this case, the Malone and Ashpaugh declarations submitted by the City are almost
entirely improper and inadmissible. Malone claims his knowledge of TracFone’s business is
based on “[1] [his] review of documents related to the Renton Tax Audit of TracFone, [2]
information available in the public domain, and [3] [his] personal experience as a TracFone
end user” (Malone Decl., ¶ 8); as noted above, however, none of these purported sources of
information is sufficient to supply Malone with “personal knowledge.” In particular, while
Malone says that he purchased “a TracFone-branded handset and airtime card from the Fred
Meyer store in Renton,” and that he “had to go to TracFone’s website to obtain access to the
wireless service and make and receive calls,” he does not actually say whether he did so, or
whether he ever made any calls with the phone. Id., ¶¶ 8-9. To the extent that Malone’s
declaration contains any relevant and admissible facts, they do not support his amateur legal
conclusion that TracFone is a “telephone business” that provides “access to a local telephone
network,” “as those terms are defined by RMC 5-11-1.” Id., ¶ 8.
As for Ashpaugh, his purported expertise regarding TracFone’s business is apparently
based on his audits of “other prepaid companies.” Ashpaugh Decl., ¶ 3 (emphasis added). But
Ashpaugh has supplied no facts to conclude these other companies employ the same business
model or practices as TracFone, rendering this experience irrelevant. See, e.g., Tilton v.
McGraw-Hill Companies, Inc., 2007 WL 3229158 (W.D. Wash. Oct. 30, 2007) (plaintiff’s
personal experience working at Microsoft did not provide a foundation for him to testify about
the practices of other potential employers). Ashpaugh’s only knowledge of TracFone’s
business activities—as opposed to those of other companies—seems to derive from his
improper analysis of TracFone contracts. See, e.g., Wells Fargo, 2011 WL 743748, at *4
(excluding expert’s opinion based on interpretation of specific contract provisions).
CONCLUSION
For the reasons set forth above, and in TracFone’s own Motion for Summary Judgment,
TracFone’s sale of prepaid wireless airtime does not provide access to network telephone
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 22
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
service within the meaning of the controlling statutes, because only network carriers can
provide access to their telephone networks, and TracFone is not a network carrier. The City’s
motion for partial summary judgment, which seeks a declaration that TracFone is “subject to”
Renton’s utility tax, should be denied.
Even if the Hearing Examiner holds that TracFone’s sale of prepaid wireless airtime is
network telephone service, for the reasons set forth above and in TracFone’s own motion for
Summary Judgment, and consistent with the holding in TracFone v. Springfield, TracFone’s
wholesale sales of prepaid wireless airtime are charges for network telephone service
purchased for the purpose of resale that the City is specifically barred from including in the
statutory measure of tax under RCW 35A.82.060. The City’s request for a declaration that such
sales can be included in the tax base should be denied.
DATED: February 12, 2021.
LANE POWELL PC
By Scott M. Edwards, WSBA No. 26455 edwardss@lanepowell.com Grant S. Degginger, WSBA No. 15261 deggingerg@lanepowell.com Attorneys for TracFone Wireless, Inc.
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125110.0002/8355280.5
TRACFONE’S OPPOSITION TO RENTON’S
PARTIAL SUMMARY JUDGMENT MOTION - 23
LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: 206.223.7107
CERTIFICATE OF SERVICE
I hereby certify under penalty of perjury of the laws of the State of Washington and the
United States that, on the date listed below, I caused to be served a copy of the attached
document to the following persons via electronic mail:
Kari L. Sand Ogden Murphy Wallace P.L.L.C. 901 Fifth Avenue, Suite 3500 Seattle, WA 98164 ksand@omwlaw.com Cynthia Moya Renton City Clerk 1055 So. Grady Way Renton, WA 98057 cmoya@rentonwa.gov olbrechtslaw@gmail.com
Executed on the 12th day of February, 2021, at Seattle, Washington.
s/ Barbara LaBelle Barbara LaBelle, Legal Assistant