Crown Castle Fiber LLC sought to install 5G wireless infrastructure in Wilmington but faced opposition from the City, which required a license agreement before proceeding. The dispute centers around differing interpretations of state laws, city ordinances, and their relation to the Federal Telecommunications Act (FTA). The court denied Crown Castle’s Motion for Summary Judgment.
Crown Castle, a Delaware-certified public utility, installs distributed antenna systems on utility poles to enhance 5G networks for wireless carriers. The City of Wilmington manages permit applications for construction projects in public rights-of-way, while the Delaware Department of Transportation (DelDOT) oversees statewide transportation systems and is tasked with managing rights-of-way for 5G deployment under Delaware’s Advanced Wireless Infrastructure Investment Act.
The FTA was enacted to promote competition in telecommunications, establishing a framework that allows for both federal and state regulation. Sections 253 and 332 of the FTA limit state regulatory authority, with Section 253(a) preempting local actions that effectively prohibit telecommunications services. States can impose requirements for public safety and service quality but must do so on a competitively neutral basis. Section 253(c) allows local governments to charge reasonable fees for the use of public rights-of-way as long as they are fair and nondiscriminatory.
Section 332 mandates that state and local zoning regulations must not unreasonably discriminate against providers of similar services or effectively prohibit personal wireless services. However, decisions regarding the placement, construction, and modification of personal wireless facilities are left to state and local authorities. Parties facing state or local requirements can challenge these through direct petitions to the FCC or by filing actions in federal court.
Fifth-generation (5G) mobile technologies aim to enhance mobile communications by providing faster speeds and greater capacity. The deployment of 5G requires numerous small cells installed on utility poles and similar infrastructure, necessitating government approvals. Local governments and residents express concerns about rights-of-way management, fees, and the impact of small cells on property values and health. The FCC's 2018 "Small Cell" and "Moratorium" Orders aimed to streamline 5G infrastructure deployment, facing challenges from various stakeholders in federal court. The Ninth Circuit Court upheld most provisions, including that fees must be "objectively reasonable" and not exceed those charged to similar competitors. It also established a "shot clock" for permit applications: sixty days for existing infrastructure and ninety days for other applications. The Moratorium Order prevents any local requirements that significantly hinder small cell deployment, defining express and de facto moratoria.
Several states, including Delaware, have enacted or proposed legislation to facilitate the permitting process for small cell deployment. Delaware's Advanced Wireless Infrastructure Investment Act, enacted in August 2017, aims to promote economic development in wireless communications.
The SWA allows non-public utility companies, such as privately held wireless service providers, to access state rights-of-way for pole and structure attachment under similar regulations as public utilities. It mandates prompt processing and fair rates for permit applications related to small wireless facility installation and maintenance. DelDOT is responsible for handling these permit applications, ensuring non-discriminatory approval processes, and is prohibited from imposing moratoriums on such permits.
In Wilmington, the City’s home rule Charter grants it comprehensive legislative and administrative authority over municipal functions, allowing it to enact necessary ordinances. The City has incorporated the Wilmington City Code, which includes the Wireless Amendment adopted in December 2018 and the Wireless Telecommunications Facilities Manual. These regulations require prior authorization for any activities in City rights-of-way, alongside compliance with established minimum standards. Wireless service providers must secure both use and occupancy permits and construction permits before beginning work in City-managed areas, with a commitment to neutral and fair treatment for all applicants.
Crown Castle has sought permission since 2018 to install thirty-three distributed antenna systems in Wilmington, with planned installations in both City and DelDOT rights-of-way. However, the City is requiring Crown Castle to sign a franchise agreement before approving its permits, a demand Crown Castle contests as objectionable and preempted by state law.
Crown Castle faces challenges regarding nine nodes installed in rights-of-way claimed by DelDOT, which are non-operational due to the need for underground safety equipment mandated by Delmarva Power. This installation requires grounding rings that necessitate sidewalk disruption, which in turn requires a city construction permit. The City has denied these permits, asserting jurisdiction over the sidewalk and insisting that Crown Castle enter a franchise agreement, as the grounding rings are classified as a "wireless telecommunications facility" under the City Wireless Regulations. Consequently, the project is halted pending either the franchise agreement or a court ruling that would prevent the City from enforcing its requirements, allowing Crown Castle to proceed with the grounding ring installation.
The litigation began in the Court of Chancery, where Crown Castle sought declaratory and injunctive relief. However, the Vice Chancellor determined that the issuance of a building permit was a ministerial function outside the court's jurisdiction, leading to the case's transfer to a higher court. A key issue for determination is the control of sidewalks in the disputed rights-of-way and whether DelDOT is a necessary party to the case. DelDOT has since been joined as a party and has filed responsive pleadings. Crown Castle's motion for summary judgment seeks clarification on whether the City has unlawfully prohibited its wireless services under the Federal Telecommunications Act (FTA) and to establish jurisdiction over the installed DelDOT nodes.
Crown Castle argues that the Federal Telecommunications Act (FTA) and the Small Wireless Facilities Act (SWA) preempt the City Wireless Regulations, asserting that DelDOT cannot deny the applicability of the SWA after previously issuing permits. Crown Castle requests the Court to declare: 1) the City Wireless Regulations are preempted by the FTA; 2) the City's draft License Agreement and refusal to conduct further reviews obstruct Crown Castle's ability to provide telecommunications services in violation of 47 U.S.C. § 253(a); 3) DelDOT has exclusive jurisdiction over small cell facilities under the SWA; 4) DelDOT nodes fall under the City Wireless Regulations; and 5) Crown Castle possesses all necessary permits to proceed with the DelDOT nodes project, including grounding ring placement.
DelDOT opposes Crown Castle's claims, arguing that it lacked authority to issue the digging permit for the grounding rings as the 1956 Agreement grants the City jurisdiction over its sidewalks. DelDOT also suggests it erred in issuing the nine permits under the SWA, asserting that its involvement was not required.
The City of Wilmington contends that there are factual issues preventing summary judgment in favor of Crown Castle. It claims the 1956 Agreement places the thirty-three locations within the City’s rights-of-way, asserts that grounding rings qualify as 'wireless telecommunications facilities' subject to licensing under City regulations, and argues that the proposed draft License Agreement is valid and does not violate FTA provisions, as it is similar to an existing agreement with an AT&T subsidiary.
The applicable legal standard under Delaware Superior Court Civil Rule 56(c) allows for summary judgment when there are no genuine issues of material fact. The Court's role is to assess whether material facts are disputed rather than to resolve those disputes. The case involves statutory and contract interpretation, leading the Court to determine if any ambiguities exist in the relevant statutes, applying principles of plain meaning and legislative intent in its analysis.
Crown Castle seeks a court declaration that the SWA and City Wireless Regulations are preempted by Section 253(a) of the Federal Telecommunications Act (FTA). Before exploring this claim, the court must confirm its subject-matter jurisdiction. It is noted that state courts generally have concurrent jurisdiction over federal claims unless explicitly stated otherwise. Section 253(d) provides that the FCC has the authority to preempt local regulations if they violate subsections (a) or (b), which indicates that no private right of action exists for claims under these subsections. The clear omission of subsection (c) indicates that Congress intended for the FCC to enforce 253(a) and that telecommunications providers can enforce 253(c). Consequently, the court denies Crown Castle’s request regarding preemption due to lack of jurisdiction.
Regarding the License Agreement between Crown Castle and the City, no agreement has been finalized. Crown Castle seeks a ruling on whether the agreement's terms are unfair or unconscionable, citing issues with fees such as annual charges and increased fees based on volume and collocation. The FCC's Small Cell Order clarifies that fees imposed by local governments must be reasonable and reflective of actual costs to comply with Section 253(a). Fees exceeding these conditions, such as those based on excessive consultant fees, are deemed violations. Since Crown Castle has not yet entered into the agreement, further factual development is required to assess the fairness of the proposed fees, and summary judgment is not appropriate due to the existence of material facts in dispute. The City contends that the proposed License Agreement closely resembles an existing agreement with an AT&T subsidiary.
To determine whether fees charged to Crown Castle are comparable to those of similar competitors, further investigation is necessary. Disputes regarding whether the AT&T subsidiary is a similarly-situated competitor necessitate denial of summary judgment. Additionally, to assess if the City’s fees are a reasonable approximation of actual costs incurred from Crown Castle’s use of rights-of-way, more record development is required.
Regarding the State Wireless Act (SWA), it does not grant the Delaware Department of Transportation (DelDOT) exclusive jurisdiction over "small cell facilities." Under Delaware law, state statutes can coexist with local regulations unless they conflict, in which case the state statute prevails. For a statute to be deemed exclusive, clear legislative intent must be demonstrated, either explicitly or implicitly. The SWA lacks any language indicating exclusivity; instead, it recognizes DelDOT’s shared responsibilities with local governments. The General Assembly conditioned DelDOT’s responsibilities under the SWA on compliance with existing standards, indicating that DelDOT does not have exclusive authority over state rights-of-way. Furthermore, Delaware Code sections 131(a) and 134(a) restrict DelDOT's jurisdiction in incorporated areas, asserting that DelDOT's authority is limited and does not preempt local laws governing the same subject matter. Thus, no express intention of exclusivity is present in the SWA.
The SWA and City Wireless Regulations are not inherently contradictory. The Court has established that the SWA is not exclusive and must examine whether there is an implied intent for exclusivity based on inconsistencies between the regulations. Implied exclusivity may be indicated if local ordinances obstruct state statutes, but the City Wireless Regulations explicitly state that their provisions should not conflict with state law or enforceable agreements. This express acknowledgment suggests that the two regulations do not impede the objectives of the SWA. Both the FTA and SWA, along with the City Wireless Regulations, aim to facilitate the rapid deployment of wireless telecommunications infrastructure while ensuring neutral and nondiscriminatory treatment for all applicants. Therefore, the SWA and City Wireless Regulations are compatible, with no grounds for express or implied preemption, allowing for the coexistence of wireless services within City rights-of-way, including those operated by Crown Castle.
Additionally, the 1956 Agreement remains the controlling document regarding the responsibilities of DelDOT and the City. DelDOT has the statutory authority to enter contracts necessary for its operations, but its jurisdiction over city streets is limited and contingent upon voluntary relinquishment by the City. The 1956 Agreement delineates the repair and maintenance responsibilities for specific streets within Wilmington, affirming that while DelDOT has certain duties, these are limited in scope as per the terms of the Agreement, which both parties recognize as binding.
DelDOT lacks jurisdiction over City sidewalks, as it only has authority granted by specific agreements like the 1956 Agreement, which excludes sidewalks from its responsibilities. DelDOT's approval of nine nodes installed by Crown Castle on utility poles located on City sidewalks was likely erroneous due to its lack of jurisdiction. Consequently, the City retains exclusive rights over these sidewalks. Furthermore, the DelDOT nodes are subject to City Wireless Regulations, which require written authorization for occupancy of the rights-of-way. These regulations emphasize that prior authorization is crucial, regardless of the issuing authority. Although DelDOT mistakenly issued a rights-of-way occupancy agreement for the nodes, requiring Crown Castle to obtain an additional use and occupancy agreement from the City may be redundant and inconsistent with the intent of the SWA.
Section 42-39 of the City Code mandates that a construction permit is required before any licensed contractor can open a sidewalk for utility installations, including water, gas, and other services. This permit is generally issued for various installation purposes. However, wireless service providers must obtain a distinct construction permit for any work in City rights-of-way, which must comply with the Wireless Telecommunications Facilities Manual standards. While construction permits for wireless telecommunications facilities do not grant rights to occupy public rights-of-way, excavation on roads maintained by DelDOT requires adherence to both state and City permit requirements.
The City’s issuance of construction permits for typical utility services is less burdensome than the process for wireless providers. In the case at hand, a construction permit is needed to install grounding rings required by Delmarva Power, but the City categorizes these rings as "small cell facilities" under its Wireless Regulations, which delays permit issuance until a franchise agreement is finalized. This situation raises potential conflicts with the state statute (SWA), which may take precedence over the municipal ordinance.
Crown Castle contends that the DelDOT nodes would have been operational if not for the grounding ring requirement. The document highlights that the existing record lacks sufficient information to resolve the issue of whether the grounding rings qualify as small wireless facilities under City regulations. Additionally, if it is determined that the City’s delay in issuing the permit constitutes an FCC-prohibited moratorium, the question of subject matter jurisdiction may need to be revisited. Consequently, the Court finds that summary judgment is inappropriate due to the insufficient record, and Crown Castle’s request to compel the issuance of the City permit is not yet resolvable.
Crown Castle's Motion for Summary Judgment is denied due to the court's lack of jurisdiction to determine whether the SWA and City Wireless Regulations are preempted by 47 U.S.C. § 253(a). The court finds that summary judgment is inappropriate based on disputed facts concerning the draft License Agreement and the implications for the DelDOT nodes project under exclusive DelDOT jurisdiction. Furthermore, even if Crown Castle's motion were interpreted as an application for a writ of mandamus, relief would still not be granted. Under Delaware law, mandamus is an exceptional remedy that requires a clear legal right, which Crown Castle has failed to establish. The duty sought must be nondiscretionary and precisely defined, which is not present in this case. Thus, no clearly owed duty of performance exists. The judge concludes with the order that all counts of Crown Castle's motion are denied.
