T-Mobile Northeast LLC v. City of Wilmington, Delaware et al

Filing 186

MEMORANDUM OPINION. Signed by Judge Eduardo C. Robreno on 3/16/2020. (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
T-MOBILE, NORTHEAST, LLC,

:
:
Plaintiff,
:
:
v.
:
:
CITY OF WILMINGTON, DELAWARE :
AND CITY OF WILMINGTON ZONING :
BOARD OF ADJUSTMENT,
:
:
Defendants.
:

C.A. No. 16-1108-ER

M E M O R A N D U M1
EDUARDO C. ROBRENO, J.

March 16, 2020

Before the Court are the parties’ cross-motions for
summary judgment, Defendants’ motion for discovery under Federal
Rule of Civil Procedure 56(d), and T-Mobile’s motion to exclude
Defendants’ expert, Lee Afflerbach. The Court will grant in part
and deny in part Defendants’ motion for summary judgment, deny
Defendants’ motion for discovery, and deny T-Mobile’s motion for
summary judgment and motion to exclude Afflerbach.
I.

FACTUAL AND LEGAL BACKGROUND
In 2016, T-Mobile submitted an application to the

Wilmington Zoning Board (the “Board”) to expand its cell

The parties filed their briefs and exhibits under
seal. Given the public’s interest in the outcome of this case
and the lack of sensitive information contained in this
document, the Court finds no justification to cloak its opinion
under a veil of secrecy and will, therefore, not file it under
seal.
1

service/coverage. T-Mobile sought to place a cell antenna on the
roof of the Claymore senior center enclosed in a fifteen-foot
extension to an existing elevator shaft. It is clear from the
hearing transcript that the shaft extension itself would not
have required zoning approval, only the placement of the antenna
inside it required approval. At the Board’s public hearing to
determine whether to grant the application, T-Mobile presented
witnesses and argued that its proposal complied with the City
Code (e.g. that it was on a roof and hidden inside an
architectural element) and that it investigated alternative
sites before picking the senior center (specifically the steeple
of St. Elizabeth’s church and the Hillside Center apartments).
The Board members asked questions during the presentation, and
at its conclusion, orally voted to deny the application. A
written decision followed. T-Mobile filed its lawsuit claiming,
inter alia, that the Board’s decision was not supported by
substantial evidence and, in any event, the denial acted as an
effective prohibition of service.
The Court initially granted summary judgment in favor
of the Defendants due to the untimeliness of T-Mobile’s
complaint. The Third Circuit Court of Appeals reversed. After
remand, the parties filed renewed motions for summary judgment.
The court held oral argument on the cross-motions and they are
now ready for adjudication.
2

II.

LEGAL STANDARDS
Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A
fact is “material” if proof of its existence or nonexistence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248.
The Court views the facts in the light most favorable
to the nonmoving party. “After making all reasonable inferences
in the nonmoving party’s favor, there is a genuine issue of
material fact if a reasonable jury could find for the nonmoving
party.” Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265,
268 (3d Cir. 2010). While the moving party bears the initial
burden of showing the absence of a genuine issue of material
fact, meeting this obligation shifts the burden to the nonmoving
party who must “set forth specific facts showing that there is a

3

genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting
Fed. R. Civ. P. 56).
The standard for summary judgment is identical when
addressing cross-motions for summary judgment. Lawrence v. City
of Phila., 527 F.3d 299, 310 (3d Cir. 2008). When confronted
with cross-motions for summary judgment, “[t]he court must rule
on each party’s motion on an individual and separate basis,
determining, for each side, whether a judgment may be entered in
accordance with the Rule 56 standard.” Schlegel v. Life Ins. Co.
of N. Am., 269 F. Supp. 2d 612, 615 n.1 (E.D. Pa. 2003) (quoting
10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2720 (3d ed. 1998)).
III. DISCUSSION
A.

The Summary Judgment Motions
1.

The Board’s Denial Was Supported by Substantial
Evidence in the Record

A zoning board’s denial of “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.” 47 U.S.C. § 332(c)(7)(B)(iii). T-Mobile
argues that the Board’s denial was not supported by substantial
evidence while the Board seeks a judgment that its decision was
supported.
The substantial evidence standard of review is
deferential. It requires that the decision at issue be supported
4

by more than a mere scintilla of evidence. Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 477 (1951). Substantial
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. Substantial
evidence review is restricted to the evidence that was before
the zoning board. Sprint Spectrum, L.P. v. Zoning Bd. of Adjmt.
of Paramus, 606 F. App’x 669, 672 (3d Cir. 2015).
At the conclusion of the zoning hearing, the first
Board member to vote opined that, “I personally I don't want to
encourage T-Mobile or any additional carriers to utilize that
space for that purpose, due to the lack of community support and
the potential for the adverse effect on the surrounding
properties in that neighborhood. I'm against the application
this evening.” R. 639.2 The second Board member stated, “I did
not find that there was enough proof to support the application,
and I vote against it as well.” Id. The Chairman of the Board
then provided:
It is kind of a tough case for me, but,
after listening to all the evidence, I'm not even
clear that enough of a showing has been made that it
would be needed for T-Mobile to have this facility, as
far as their own information that's been given to us
is concerned. I'm just not convinced from the
information and from the testimony that it is actually
needed to fulfill the requirement or T-Mobile's
expressed desire to fill any coverage gap that exists
or any coverage need that exists.

The administrative record is abbreviated as “R” and
can be found at ECF No. 140.
2

5

I'm also not convinced that it meets the
requirements of the code as to either the placement of
the antenna or that it meets the height restrictions
that would be otherwise required by the code.
And, therefore, I also vote against the
application and, therefore, the application fails
three to nothing.
R. 639-40.
In its written decision, the Board provided that it
denied the application because the installation “would not be in
harmony with the general purpose and intent of the zoning
requirements and would have an adverse impact on the present
character of the neighborhood.” R. 510. It continued that TMobile had submitted insufficient evidence and testimony: (a) to
support T-Mobile’s claim that there was a coverage gap in the
area; (b) to adequately explain how T-Mobile determined that
there was a gap; and (c) to show the necessity for the use of
that location. Id. The Board also indicated that T-Mobile had
made insufficient efforts to locate potential alternate sites.
Id. Finally, the Board concluded that:
approval of the proposed installation at this location
would have an adverse effect on surrounding properties
in the neighborhood because it would allow the
Applicant and encourage other carriers to utilize this
site contrary to the City Code provisions and other
legal
requirements
which
seek
to
protect
area
residents,
maximize
the
use
of
existing
telecommunications sites, and minimize the need for
new sites such as this.
Id.

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The parties have focused on three reasons for the
denial which they argue were or were not supported by
substantial evidence: (1) that the proposed facility was not in
harmony with the general purpose and intent of the zoning
regulations; (2) that T-Mobile failed to adequately explore
alternative sites; and (3) that T-Mobile’s “needs analysis” was
inadequate.
Again, the Court does not have to agree with the
Board’s reasoning, it need only determine that more than a
scintilla of evidence supports at least one of the Board’s
articulated reasons for the denial.
a.

The Board’s Finding that the Proposed
Facility Was Not in Harmony with the General
Purpose and Intent of the Zoning Regulations
Was Supported by Substantial Evidence

The Wilmington City Code provides that the Board can
grant special exceptions like the one sought by T-Mobile if the
proposed facility will “be in harmony with the general purpose
and intent of the zoning regulations and maps and will not tend
to affect adversely the use of neighboring property.”
Wilmington City Code, § 48-71(a).
The Wilmington Zoning Regulations provide that “[t]he
concealment or incorporation of antenna facilities into the
interior of a building or structure is preferable, followed in
order by concealment in exterior building elements, recessed
rooftop placement, and locations on the recessed upper facades
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of tiered buildings.” City of Wilmington Standards and
Regulations Manual for Commercial Antennas and Related
Facilities (“Regulations”) III.A.1, R. 693. The Regulations
continue that “[n]ew antenna support structures shall be
encouraged to locate on existing antenna facilities where
feasible” and “[i]f a new structure is to be constructed it
shall be designed structurally and electrically to accommodate
both the applicants [sic] antennas and comparable antennas for
at least two additional users.” Regulations III.A.3 & 4, R. 693.
The Regulations also provide that “[f]acilities shall be
compatible in scale and integrated architecturally with the
design of surrounding buildings and the natural setting.”
Regulations III.B.2, R. 693.
There is substantial evidence to support the Board’s
determination that the proposed facility was not in harmony with
the purpose and intent of the zoning regulations. While the
antenna was to be enclosed in an exterior building element, the
hearing testimony shows that T-Mobile’s proposed facility would
not realistically allow for co-location of additional antennas.3
Based on the mock-up photos, the fifteen-foot extension of the

T-Mobile’s radio frequency expert, Madan Belgode, explained
that there was technically room in the tower extension for an
additional antenna, but it would have to be below T-Mobile’s,
and T-Mobile had already concluded that a wireless antenna would
not be effective any lower. See R. 544-45; 578; 584; 588-92;
623.
3

8

narrow elevator shaft, which would be the tallest part of the
building, also could easily be found to be incompatible with the
scale of the surroundings.
b.

The Board’s Conclusion that T-Mobile Failed
to Adequately Explore Alternative Sites Is
Supported by Substantial Evidence

The City’s Regulations require a “site selection
analysis providing reasonable siting alternatives for
consideration including the identification of collocation
options.” Regulations II.B.2(j)(2), R 687. At the hearing,
Belgode confirmed that T-Mobile seriously investigated only
three sites for their proposed facility: the Claymore senior
center, the steeple at St. Elizabeth’s church, and the Hillside
Center apartments. R. 540-41. The owner of Hillside Center would
not lease the space to T-Mobile. R. 541. When asked whether the
church steeple would have been workable, Belgode replied only
that T-Mobile preferred the rooftop of the senior center because
placing the antenna in the steeple would be more difficult. R.
542. Belgode did not know if T-Mobile had inquired whether the
church would lease the space. R. 541. T-Mobile also did not
inquire whether any of the rooftops at the church would have
been suitable.
The Court concludes that the Board’s decision that TMobile failed to adequately explore alternative sites is
supported by substantial evidence including the evidence that T9

Mobile only reviewed three options, the review of those sites
appeared cursory or incomplete, and T-Mobile’s chosen site would
not allow for co-location.
c.

The Board’s finding that T-Mobile Had
Presented an Inadequate Needs Analysis Based
on a Gap in Service Is Not Supported by
Substantial Evidence

The City’s Regulations require the applicant to submit
a “needs analysis describing how the proposed facility will
address an existing service issue.” Regulations II.B.2(j)(1), R.
687. During the hearing, Belgode explained why T-Mobile had a
need for the new antenna. See Tr. 524-62. T-Mobile also provided
a justification report for the Board. Tr. 255-263.4 During the
hearing, the Board members asked questions regarding current
coverage which were addressed by Belgode. Contrary to
Defendants’ arguments, the transcript does not show that Belgode
was unable to answer certain questions or gave answers
contradicting a need. In the Board’s written denial, it
contended that T-Mobile did not adequately establish a gap in
service or the necessity of the antenna. However, T-Mobile was
required to show only that the new antenna would address an

The Court’s review of the needs analysis is somewhat
hampered by the fact that the various coverage maps were not
submitted in color. See R. 258-261. As discussed immediately
below, however, whether this particular reason is supported by
substantial evidence is not determinative since the previous two
reasons given by the Board are so supported.
4

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existing service issue. The written denial does not specifically
address this inquiry and is therefore deficient.
Based on the materials before the Board, the testimony
during the hearing, and the Board’s written denial, the Court
concludes that the Board did not support with substantial
evidence its conclusion that T-Mobile failed to adequately
establish a need for the antenna because it did not show a gap
in service. However, because the Board’s decision to deny the
application was supported by substantial evidence in other ways,
this is harmless error.
d.

Summary Judgment in Favor of Defendants on
this Issue Is Appropriate

Viewing the facts in the light most favorable to TMobile and based on the analysis above that substantial evidence
supports the Board’s conclusions that: (1) the proposed facility
would not be in harmony with the general purpose and intent of
the zoning regulations; and (2) T-Mobile failed to adequately
explore alternative sites, the Court concludes that the Board’s
decision to deny T-Mobile’s application is supported by
substantial evidence. Therefore, Defendants are entitled to
summary judgment on this issue.
e.

T-Mobile Is Not Entitled to Summary
Judgment on this Issue

Viewing the facts in the light most favorable to
Defendants, the Court concludes, based on the analysis above,
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that there is no genuine dispute that the Board’s decision was
supported by substantial evidence. Therefore, T-Mobile is not
entitled to summary judgment on this issue.
2.

Material Prohibition

Even if the Board’s decision was supported by
substantial evidence, the Court should reverse it if the denial
effectively prohibited T-Mobile from providing wireless service.
The relevant United States Code provision provides
that any regulation of the placement of wireless facilities
“shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.” 47 U.S.C. §
332(c)(7)(B)(i)(II) (emphasis added). Unlike the discussion
above regarding substantial evidence review, this analysis is de
novo and “is not limited to the record compiled by the state or
local authority.”
a.

Paramus, 606 F. App’x at 671.
The Applicable Test to Determine Effective
Prohibition

When this case was filed, it was clear that the Third
Circuit’s test for “effective prohibition” applied. That test,
which has been followed by several other circuit courts,
requires a provider to show when arguing that a denial
constitutes an effective prohibition of service that: (1) the
proposed “facility will fill an existing significant gap in the
ability of remote users to access the [network]”; and (2) “the
manner in which [the provider] proposes to fill the significant
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gap in service is the least intrusive on the values that the
denial sought to serve.” APT Pittsburgh Ltd. P’ship v. Penn Twp.
Butler Cty. of Pa., 196 F.3d 469, 480 (3d Cir. 1999).
Recently, however, and while this case was on appeal,
the FCC issued a declaratory ruling that purported to change the
effective prohibition test. In the Matter of Accelerating
Wireless Broadband Deployment by Removing Barriers to
Infrastructure Inv., 33 F.C.C. Rcd. 9088 (2018). In this ruling,
the FCC provides that effective prohibition occurs if the action
of a zoning board “materially inhibits” a wireless carrier from
providing service, including materially inhibiting the
improvement of service. Id. ¶¶ 35-37. The FCC specifically
rejected the significant gap test. Id. ¶ 40. Thus, this new test
does not require a gap in service or that the proposed solution
be the least intrusive way to fill the gap. It also gives more
flexibility to the provider to determine what levels of coverage
are needed in an area.
This case was filed prior to the issuance of the FTC’s
declaratory ruling. Therefore, the question is whether the
ruling has retroactive effect. “Retroactivity is not favored in
the law” and an agency may not issue retroactive rules without
express congressional authorization. Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988). No such Congressional authority
is claimed in this case.
13

The Third Circuit has “held that a new rule should not
be deemed to be ‘retroactive’ in its operation—and thus does not
implicate the Supreme Court’s concerns in Bowen—if it ‘d[oes]
not alter existing rights or obligations [but] merely
clarifie[s] what those existing rights and obligations ha[ve]
always been.’” Levy v. Sterling Holding Co., LLC, 544 F.3d 493,
506 (3d Cir. 2008) (quoting Appalachian States Low–Level
Radioactive Waste Comm’n v. O'Leary, 93 F.3d 103, 113 (3d Cir.
1996)). Thus, when a new agency rule is merely a clarification
of the law, rather than a substantive change, “the application
of that new rule to pre-promulgation conduct necessarily does
not have an impermissible retroactive effect, regardless of
whether Congress has delegated retroactive rulemaking power to
the agency.” Id.
The Court concludes that The FCC’s new rule is not a
mere clarification of the standard for effective prohibition of
service but, instead, makes a substantive change in the law,
altering existing obligations. Id. Application of the new
standard is an abrupt departure from a well-established practice
in the Third Circuit as well as in other circuits. Instead of
the Third Circuit’s more stringent test where the carrier must
establish a significant gap in service and that it has chosen
the least intrusive solution, under the FCC ruling, it appears
that to find an effective prohibition, a court need only
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conclude that the denial materially inhibits a wireless carrier
from improving its service. This new standard grants carriers
greater substantive rights at the expense of the local municipal
government. Concluding that the FCC’s declaratory ruling is not
retroactive because the ruling makes substantive changes to the
law and alters existing obligations, the Court will apply the
Third Circuit’s significant gap test in this case.
b.

The Existence of Genuine Disputes as to
Material Facts Prevents the Award of Summary
Judgment to Either Party on this Issue

The parties’ experts5 debate whether there is a gap in
service or whether T-Mobile is merely attempting to improve
service. They also disagree on whether there are more
appropriate locations for the antenna. The Court concludes that,
based on the expert materials, there are genuine disputes as to
material facts regarding whether there is a significant gap in
T-Mobile’s service and whether its proposed solution is the
least intrusive on the values the Board’s denial sought to
serve. APT Pittsburgh, 196 F.3d at 480. Whether the Court views
the facts in the light most favorable to T-Mobile or Defendants,
these genuine disputes remain. Therefore, summary judgment on
this issue is inappropriate for either party.

As discussed immediately below, the Court will deny TMobile’s motion to exclude Defendants’ expert, Lee Afflerbach.
5

15

B.

The Motion to Exclude Lee Afflerbach
T-Mobile seeks to exclude the testimony and reports of

the City’s expert, Lee Afflerbach. Afflerbach is a radio
frequency engineer with 40 years of experience in designing,
evaluating, and testing various radio communication systems,
including cellular networks, for public sector entities. For
example, Afflerbach has served as a consultant on wireless
facilities applications and has reviewed or supervised the
evaluation of hundreds of applications for cell towers for
clients in the Washington, D.C. and Baltimore metropolitan
areas. He is designing a communications network for the Delaware
Department of Transportation, has performed and managed
communication design studies for the FBI, DEA, New York state
police, and Georgia state police, and has taught courses on
communication designs, applications, and operations. Afflerbach
has not worked with any private wireless providers, however.
Afflerbach concluded that T-Mobile failed to establish
a significant gap in service necessitating the new wireless
facility. Afflerbach also provided alternatives he concluded
were less intrusive than a facility on the roof of the senior
center.
Fed. R. Evid. 702 requires a court to:
(1) confirm the witness is a qualified expert; (2)
check the proposed testimony is reliable and relates
to
matters
requiring
scientific,
technical,
or
specialized knowledge; and (3) ensure the expert’s
16

testimony is “sufficiently tied to the facts of the
case,” so that it “fits” the dispute and will assist
the trier of fact.
UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949
F.3d 825, 832 (3d Cir. 2020) (quoting Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 591 (1993)).
Based on his experience, the Court disagrees with TMobile that Afflerbach is not qualified to present expert
testimony on the remaining issues in this case. That he has not
worked in the private sector, worked with data in a specific
format, or worked with a specific city’s code goes not to the
admissibility of his opinion but to the weight to be afforded to
it. The Court rejects T-Mobile’s argument that Afflerbach did
not base his opinion on industry standards or methodologies.
Afflerbach’s opinions appear to be based on T-Mobile’s professed
standards. And because Afflerbach’s opinions are based on his
experience with various communication systems, including
cellular networks, his testimony is not speculative and will aid
the Court.
In sum, the Court concludes that Afflerbach’s
experience renders him qualified as an expert and his testimony
is adequately specialized and reliable that it will assist the
Court in reaching its determination.

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C.

The Motion for Additional Discovery
Defendant’s motion for additional discovery is only

relevant if the Court retroactively applied the new standard for
“effective prohibition” found in the FCC’s declaratory ruling.
Since the Court has concluded that the FCC’s standard does not
have retroactive effect in this case and, instead, will apply
the Third Circuit’s standard, the motion for additional
discovery is moot.
VI.

CONCLUSION
For the reasons set forth, the Court will grant

Defendants’ motion for summary judgment in part and deny it in
part. Specifically, the Court concludes that the Board’s
decision was supported by substantial evidence and, thus, grants
Defendants’ summary judgment on that issue only. The Court
denies Defendants’ motion on the issue of whether the Board’s
decision effectively prohibits T-Mobile from providing wireless
service. For the same reasons, the Court will deny T-Mobile’s
motion for summary judgment. The Court will also deny T-Mobile’s
motion to exclude expert Afflerbach and Defendants’ motion for
discovery.
An appropriate order follows.

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