T Mobile Northeast LLC v. City of Wilmington, 011019 FED3, 18-1831

Docket Nº:18-1831
Attorney:Thomas S. Thompson [ARGUED] Davis Wright Tremaine 1919 Pennsylvania Avenue, N.W. Counsel for Appellant Joseph Van Eaton [ARGUED] Best Best & Krieger Counsel for Appellees
Judge Panel:Before: JORDAN, NYGAARD, and VANASKIE, Circuit Judge
Case Date:January 10, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit




No. 18-1831

United States Court of Appeals, Third Circuit

January 10, 2019

Argued September 12, 2018

On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-16-cv-01108) District Judge: Hon. Eduardo C. Robreno

Thomas S. Thompson [ARGUED] Davis Wright Tremaine 1919 Pennsylvania Avenue, N.W. Counsel for Appellant

Joseph Van Eaton [ARGUED] Best Best & Krieger Counsel for Appellees

Before: JORDAN, NYGAARD, and VANASKIE, [*] Circuit Judge



No one likes bad cell phone reception or slow streaming data on their smartphone, but that does not mean anyone wants a cellular antenna in their neighborhood, which is why there are zoning battles like the one central to this case.

T Mobile Northeast LLC ("T Mobile"), a wireless telecommunications service provider, applied to the Zoning Board of Adjustment ("ZBA") of the City of Wilmington, Delaware for permission to erect an antenna in the City. The ZBA said no. So, relying on a provision of federal law that allows a disappointed wireless service provider like T Mobile to seek review in a district court "within 30 days after" a zoning authority's "final action," 47 U.S.C. § 332(c)(7)(B)(v), T Mobile filed suit. After the case had proceeded for over a year, however, the District Court concluded that it lacked jurisdiction. The Court reasoned that because T Mobile filed its complaint before the ZBA released a written decision confirming an earlier oral rejection of the zoning application, the claim was not ripe. And, since T Mobile did not supplement its complaint to include the ZBA's written decision within 30 days of its issuance, the Court also concluded that relation back could not remedy the ripeness defect. The District Court thus granted the City's motion for summary judgment.

T Mobile now appeals. It argues that its complaint was not premature or, in the alternative, that its supplemental pleading cured any ripeness problem. We agree that the grant of summary judgment was improper and, for the reasons that follow, will remand the case for further proceedings consistent with this opinion.


A. Statutory Framework

This dispute is governed by the Telecommunications Act of 1996 ("TCA"), which amended the Federal Communications Act of 1934 and includes provisions on mobile phone services. Pub. L. No. 104-104, §§ 1, 704, 110 Stat. 56, 56, 151 (1996); 47 U.S.C. § 332. Passed to "encourage the rapid deployment of new telecommunications technologies," Preamble, 110 Stat. at 56, the TCA provides for expedited review in federal court of a denial of permission to build a cell phone antenna, id. § 704, 110 Stat. at 151-52. Such review is a "benefit Congress expressly intended to confer on wireless providers[.]" Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 264 (3d Cir. 2002). At the same time, the TCA also serves to preserve local zoning authority. 47 U.S.C. § 332(c)(7).

At issue here are three key sections of the statute. First, the TCA mandates that "[a] State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed[.]" Id. § 332(c)(7)(B)(ii). The Federal Communications Commission ("FCC") has interpreted "reasonable period of time" in that statutory provision to mean that zoning authorities have a "shot clock"1 and must act within 90 days of an application to attach an antenna to an existing structure or 150 days of an application where a new support structure is to be built. Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B), 24 FCC Rcd. 13994, 14008, 14012 (2009). Second, in what we will call the "review provision" of the statute, the TCA grants "[a]ny person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof" a right to have that locality's decision reviewed by "commenc[ing] an action" "within 30 days" in district court. 47 U.S.C. § 332(c)(7)(B)(v). Third, in the statute's "denial provision," the TCA states that "[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." Id. § 332(c)(7)(B)(iii). Notably, the terms "act," "final action," and "decision … to deny" are not defined in the TCA. Furthermore, the statute does not make clear whether "final action" should be read to encompass all decisions to deny, including oral ones, nor does it address whether there is a difference between an "act" for purposes of the shot clock and a "final action" for purposes of judicial review.

B. Factual Background

T Mobile is a telecommunications service provider. It says that it needs to erect a cellular antenna to fill "a significant gap" in coverage for its customers in Wilmington, Delaware, (Opening Br. at 3) presumably where there has been an increase in phone calls and data usage. T Mobile wants to put its antenna on top of a senior living high-rise in the City, but, because a special exception to local zoning laws is needed, it first had to go to the ZBA. It filed an initial application and then, on August 25, 2016, a final amended application, seeking the exception.

The ZBA held a hearing on October 26, 2016, to consider T Mobile's request, some two months after the final amended application was submitted. During the hearing, T Mobile presented evidence of the need for the antenna and discussed proposals to address aesthetic concerns. The ZBA also received objections from members of the local community, some of whom were outspoken in worrying about the effects of radio frequency emissions. At the end of the hearing, the ZBA denied T Mobile's application in a unanimous oral decision.

The Board gave several reasons for the denial. One board member said the ZBA should not encourage the use of a senior living community rooftop as the base for an antenna because of the potential adverse effect on the properties in the neighborhood. Another board member said there was not enough proof of a need for additional coverage to support the application. The Chairman said there was not enough evidence that T Mobile needed the antenna and that it did not appear to satisfy the zoning code in terms of placement and height restrictions.

The ZBA's oral decision to deny the application was not put in writing on October 26 or anytime soon thereafter. According to T Mobile, that fits a "pattern and practice of [the ZBA] not issuing a written decision of land use denials unless or until the City is sued." (Opening Br. at 7.) Only after T Mobile had filed its initial complaint in the District Court, and after the City filed its answer, did the ZBA issue its written decision and explanation of its reasoning for denying the application.

T Mobile asserts that the denial of its application violates the TCA. Under the statute, such a denial is invalid if it has the "effect of prohibiting the provision of personal wireless services[, ]" 47 U.S.C. § 332(c)(7)(B)(i)(II), or is "on the basis of the environmental effects of radio frequency emissions[, ]" id. at § 332(c)(7)(B)(iv). T Mobile claims that Wilmington's denial was improper on both of those grounds.2But those assertions go to the merits and are not actually before us on this appeal. At issue now is whether T Mobile's claim can be heard at all.

C. Procedural History

Evidently with its eye on the 30-day deadline in the TCA's review provision, T Mobile filed a lawsuit in the United States District Court for the District of Delaware within 30 days of the ZBA's oral decision, challenging that denial.3 In addition to its claims on the merits, T Mobile's initial complaint alleged that the City violated procedures mandated in the TCA, specifically those in the denial provision, by failing to provide a written decision contemporaneous with its oral decision and by not supporting the denial with substantial evidence.

The parties entered into a stipulation asking the District Court for an expedited case schedule, as provided for in the review provision of the TCA. 47 U.S.C. § 332(c)(7)(B)(v). That request was granted. Wilmington then answered the complaint, asserting a number of affirmative defenses, including that the complaint was not ripe because the ZBA had not yet issued a final written decision. Nevertheless, the City did not, at that time, file a motion to dismiss for failure to state a claim or for lack of...

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