T-Mobile Declines Mediation in Delaware Siting Dispute
PHILADELPHIA -- “You can bring the horse to water, but you can’t make it drink,” said U.S. District Court of Delaware Judge Eduardo Robreno at oral argument here Monday after a T-Mobile lawyer turned down a Wilmington offer for mediation in a wireless siting dispute. The company sought summary judgment that the city’s zoning board didn’t cite enough evidence to block a T-Mobile rooftop installation in 2016 and violated the FCC’s effective prohibition standard.
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Robreno asked if mediation might be quickest to resolve T-Mobile v. Wilmington (case 1:16-cv-01108), which started in 2016 and moved to and from the 3rd U.S. Circuit Court of Appeals in Philadelphia (see 1901110040). T-Mobile is “skeptical” mediation would help, replied Davis Wright’s Scott Thompson, because the carrier and city talked for four years without “coming close” to finding an alternative, and the locality's interest is to “try to drag this out.” The judge asked if the mediation path would really be slower than the case possibly hanging in the court system another 10 years. “Settlement isn’t so simple” because mediation could lead to another extended zoning process, said Thompson.
“We don’t understand why mediation’s a problem,” Wilmington’s outside counsel, Joe Van Eaton of the Best Best firm, told us later. It’s fast and worked in other situations, he said. He noted at argument that Crown Castle is mediating with Hillsborough, California, at the direction of the U.S. District Court of Northern California (case 3:2018-cv-02473). T-Mobile might think it won’t get authorization for any alternative location, but winning the case would settle the issue in the carrier's favor, Van Eaton said. Thompson declined to comment.
Robreno opened argument asking if too much had changed since the case began four years ago. “Do you want to keep fighting?” asked the judge, citing changes in technology and T-Mobile’s pending buy of Sprint as potentially altering factors. No new tech cured the service gap T-Mobile sought to fill, and the need to deploy facilities might be bigger today, Thompson said. T-Mobile/Sprint is close, not final, and Sprint doesn’t have facilities in the area that would resolve the matter, he said.
T-Mobile could deploy newer wireless equipment to possibly resolve the situation, disagreed Van Eaton. Local governments can’t dictate what technology carriers use, Thompson said. Robreno said it would be “unfortunate” if the court tried to “micromanage” how carriers deploy networks. Van Eaton said that’s reason to bring in a mediator.
T-Mobile and Wilmington argued two weeks after cities debated the FCC at the 9th Circuit U.S. Court of Appeals on appeals of the agency's 2018 wireless infrastructure order about what constitutes an effective prohibition that violates law (see 2002100054). “There are a lot of moving pieces,” Van Eaton told us. He also argued for Portland, Oregon, and other cities in that case in Pasadena, California.
What Wilmington did is an effective prohibition, both as the FCC interpreted it before and after its 2018 order, Thompson told the judge. The FCC previously required deployment to solve a coverage gap, but the 2018 agency order clarified it could also be to densify a network to solve capacity issues, he said. Robreno asked if the district court should certify a question to the 3rd Circuit about the impact of the 2018 FCC order on a prior 3rd Circuit ruling. Both sides agreed the recent FCC order now controls. Wilmington and Best Best's Rebecca Andrews said the commission wasn’t authorized by Congress to retroactively apply the order. Thompson said the FCC clarified only a statute.
Wilmington failed to back up reasons to reject T-Mobile equipment, Thompson said. Opposition was mainly about RF radiation fears, but the zoning board didn’t say so because that’s not a legal reason to turn down an application, the T-Mobile lawyer said. The court could rule for the company on that issue alone, but it would be better to also rule on the effective prohibition count, he said.
City code required T-Mobile to get a special exception for its equipment due to an excessively tall enclosure that wouldn't fit in with the neighborhood, argued Van Eaton: T-Mobile failed to show it sufficiently weighed alternatives. A federal judge Friday rejected a Crown Castle lawsuit claiming a New York town illegally banned wireless facilities (see 2002240045).