Crown Castle Fiber LLC v. City of Wilmington

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CROWN CASTLE FIBER LLC, )
)
Plaintiff, )
)
v. ) C.A. No. N21C-08-126 PRW
)
CITY OF WILMINGTON and )
DELAWARE DEPARTMENT OF )
TRANSPORTATION, )
Defendants. )
Submitted: July 26, 2022
Decided: October 3, 2022
MEMORANDUM OPINION AND ORDER
Upon Crown Castle Fiber LLC’s Motion for Summary Judgment,
DENIED.
Geoffrey G. Griver, Esquire, BUCHANAN INGERSOLL & ROONEY, PC, Wilmington,
Delaware; Shawn N. Gallagher, Esquire, BUCHANAN INGERSOLL & ROONEY, PC,
Philadelphia, Pennsylvania. Attorneys for Plaintiff Crown Castle Fiber LLC.
Gary W. Lipkin, Esquire, ECKERT SEAMANS CHERIN & MELLOTT, LLC, Wilmington,
Delaware; Charles A. Zdebski, Esquire, ECKERT SEAMANS CHERIN & MELLOTT,
LLC, Washington, DC. Attorneys for Defendant City of Wilmington.
Bradley S. Eaby, Esquire, Deputy Attorney General, STATE OF DELAWARE
DEPARTMENT OF JUSTICE, Dover, Delaware. Attorney for Defendant Delaware
Department of Transportation.
WALLACE, J.
Crown Castle Fiber, LLC has long sought to install 5G-related wireless
network infrastructure in the City of Wilmington. In its way, says Crown Castle, is
the City’s untoward obstinacy, requiring, among other things, that the parties enter
into a license agreement as a precondition to moving forward with the project. The
parties’ dispute is fueled by their competing views of state laws, city ordinances and
regulations, and that local rubric’s interplay with the Federal Telecommunications
Act.
For the reasons set forth below, Crown Castle’s Motion for Summary
Judgment is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. THE PARTIES
Crown Castle Fiber, LLC (“Crown Castle”) is a Delaware Public Service
Commission-certified public utility that provides infrastructure to wireless carriers
in Delaware.1 Its operations include the installation of distributed antenna systems,
e.g., small antennas and related equipment, a/k/a “nodes,” on utility poles in the
public rights-of-way.2 Crown Castle provides its infrastructure to wireless carriers
1
Second Am. Compl. ¶ 13, Crown Castle Fiber LLC v. City of Wilm., N21C-08-126 PRW (Del.
Super. Ct. Feb. 18, 2022) (D.I. 32).
2
Tr. of Oral Arg. on Pl.’s Mot. for Summ. J. at 4 (hereinafter “Del. Ch. Arg. Tr.”), Crown Castle
Fiber LLC v. City of Wilm., C.A. No. 2019-0656-MTZ (Del. Ch. July 7, 2021) (D.I. 32).
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to broaden the 5G network to the wireless carriers’ subscribers.3
The City of Wilmington (the “City”) is a Delaware municipality.4 The City
regulates municipal activity, including the handling and processing of permit
applications for construction-type projects in its rights-of-way.5
The Delaware Department of Transportation (“DelDOT”) is an agency
organized under the laws of Delaware responsible for regulating and maintaining
statewide transportation systems.6 Delaware’s Advanced Wireless Infrastructure
Investment Act tasks DelDOT with “the absolute care, management and control of
the state rights-of-way” with respect to statewide 5G deployment.7
B. THE FEDERAL TELECOMMUNICATIONS ACT OF 1996
Congress enacted the Federal Telecommunications Act (“FTA”) “to provide
for a pro-competitive, de-regulatory national policy framework designed to
accelerate rapidly private sector deployment of advanced telecommunications and
information technologies and services by opening all telecommunications markets
3
Id. at 5, 29.
4
Second Am. Compl. ¶ 14.
5
See Pl.’s Am. Opening Br. in Supp. of Mot. for Summ. J. at 1, 34, Oct. 29, 2021 (D.I. 19).
6
Second Am. Compl. ¶ 15; see also DelDOT’s Answer to Second Am. Compl. ¶ 15, Mar. 11,
2022 (D.I. 33). Though originally omitted from the initial pleadings, DelDOT has since been
joined as a necessary party to this action because it issued authorization permits central to this
litigation. See Judicial Action Form, Jan. 28, 2022 (D.I. 29).
7
DEL. CODE ANN. tit. 17, § 1602 (2019) (findings of public policy).
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to competition.”8 The FTA created a dual system of federal and state regulation in
modern telecommunications law. The Federal Communications Commission
(“FCC”) is vested with broad regulatory authority.9 And some regulatory authority
has been reserved to the states; though the FCC’s preemption authority prevails
when a conflict between the two regulatory regimes arises.10
Invoked by Crown Castle here, Sections 253 and 332 of the FTA expressly
limit the states’ regulatory authority over a particular technology or service.11
Section 253(a) preempts the enforcement of state or local government acts that
“prohibit or have the effect of prohibiting the ability of any entity to provide any
interstate or intrastate telecommunications service.”12 States may “impose, on a
competitively neutral basis[,] . . . requirements necessary to preserve and advance
8
Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 493 (2d Cir. 1999) (quoting H.R.
REP. NO. 104-458, at 206 (1996)) (cleaned up).
9
47 U.S.C. § 151 et seq.; see also CHRIS LINEBAUGH & ERIC HOLMES, CONG. RSCH. SERV.,
R46736, STEPPING IN: THE FCC’S AUTHORITY TO PREEMPT STATE LAWS UNDER THE
COMMUNICATIONS ACT 1 (2021).
10
See, e.g., La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A] federal agency may
pre-empt state law only when and if it is acting within the scope of its congressionally delegated
authority.”); Mozilla Corp. v. FCC, 940 F.3d 1, 75 (D.C. Cir. 2019) (“[I]n any area where the
Commission lacks the authority to regulate, it equally lacks the power to preempt state law.”).
11
See 47 U.S.C. § 253(a) (1996) (removal of barriers to entry); 47 U.S.C. § 332 (2018) (mobile
services).
12
47 U.S.C. § 253(a). Telecommunications service is the “offering of telecommunications for a
fee directly to the public . . . regardless of the facilities used.” Id. § 153(53) (2010). And
“telecommunications” is “the transmission, between or among points specified by the user, of
information of the user’s choosing, without change in the form or content of the information as
sent and received.” Id. § 153(50).
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universal service, protect the public safety and welfare, ensure the continued quality
of telecommunications services, and safeguard the rights of consumers.”13
Violations thereof may be saved by Section 253(c)’s “safe harbor,” that allows local
governments “to require fair and reasonable compensation from telecommunications
providers” for the use of public rights-of-way so long as the fees are “competitively
neutral and nondiscriminatory.”14
Similarly, Section 332 provides that state or local zoning regulations shall
neither unreasonably discriminate among providers of functionally equivalent
services, nor effectively prohibit the provision of personal wireless services.15 Aside
from these limitations, however, Section 332 leaves decisions concerning the
“placement, construction, and modification of personal wireless service facilities” to
state and local authorities.16
Both sections provide mechanisms through which a party subject to a state or
local requirement might challenge the requirement: a party may (i) petition the FCC
directly to preempt enforcement of a requirement that runs afoul of Sections 253(a)
13
47 U.S.C. § 253(b).
14
Id. § 253(c).
15
Id. § 332(c)(7)(B); see also Kaspers v. Verizon Wireless Servs., LLC, 2021 WL 2193584, at *3
(N.D. Ga. May 11, 2021) (holding § 332 also applies to 5G infrastructure because the statute
prohibits state and local regulation of “personal wireless service facilities;” so, the advancement
of wireless technology since the Act’s creation doesn’t render the statutory language meaningless)
(citation omitted).
16
47 U.S.C. § 332(c)(7)(A).
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or (b);17 or (ii) bring an action in federal court.18
C. FIFTH-GENERATION NETWORKS AND THE
EVOLVING TELECOMMUNICATIONS REGULATORY LANDSCAPE
Fifth-generation (5G) mobile technologies “represent the next iteration of
mobile communications technologies that were designed to improve current (e.g.,
3G, 4G) mobile networks. 5G networks are expected to provide faster speeds,
greater capacity, and the potential to support new features and services.”19
Implementation of the 5G technology requires hundreds of small cells to be
installed—in close proximity to each other—onto utility poles and similar
infrastructure.20
Installation of small cells and supporting equipment requires approval from
federal, state, or local governments, depending on the location. 21 “Local
governments and residents have cited concerns about [the] management of rights-
of-way, fees charged to providers for access, and the impact of small cells on
17
Id. § 253(d).
18
See id. § 332(c)(7)(B)(v).
19
JILL GALLAGHER & MICHAEL DEVINE, CONG. RSCH. SERV., R45485, FIFTH-GENERATION (5G)
TELECOMMUNICATIONS TECHNOLOGIES: ISSUES FOR CONGRESS 1 (2019).
20
Dean DeChiaro, Fight over utility poles for 5G brewing in upstate New York, CQ ROLL CALL
WASHINGTON ENERGY BRIEFING, Sept. 24, 2019, 2019 WL 4621447.
21
“Small cells are low-powered radio access nodes . . . installed on existing structures, such as
buildings, poles, or streetlights. When attaching small cells to existing infrastructure, installation
and operation requires connection to a power source, backhaul (e.g., fiber optic cable connection
or wireless connection to a core network), and a permit for use of the space.” See Gallagher &
DeVine, supra note 19, at 23 (emphasis added).
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property values and health and safety.”22 Companies aiming to “win the so-called
‘race to 5G’ must navigate an uneven regulatory landscape in which municipalities
have a range of requirements for use of utility poles and other types of public
infrastructure.”23
Responding to those concerns, the FCC issued its 2018 “Small Cell” and
“Moratorium” Orders establishing regulatory parameters and standards, catering to
a streamlined deployment of 5G network infrastructure.24 A large group of local
governments, public and private utilities, and wireless service providers challenged
the orders in federal court.25 The United States Court of Appeals for the Ninth
Circuit largely upheld the challenged provisions other than some aesthetic
requirements.26
The Small Cell Order requires any fees imposed to be “objectively
reasonable” in relation to a local government’s actual costs, and “no higher than the
22
Gallagher & DeVine, supra note 19, at 24.
23
DeChiaro, supra note 20.
24
See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment, 33 FCC Rcd. 9088 (2018) (“Small Cell Order”), vacated in part City of Portland v.
United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied sub nom. City of Portland, Or. v. FCC,
141 S. Ct. 2855 (2021); Accelerating Wireless Broadband Deployment by Removing Barriers to
Infrastructure Inv., 33 FCC Rcd. 7705, 7789 (2018) (“Moratorium Order”) (“[W]e are interpreting
the scope of the substantive prohibition set forth in section 253(a).”).
25
See City of Portland, 969 F.3d at 1028.
26
Id. at 1053.
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fees charged to similarly-situated competitors.”27 It also implemented a “shot clock”
setting time limitations for reviewing and responding to permit applications.28 The
timing requirements apply to all permitting decisions, with a sixty-day deadline for
“applications for installation on existing infrastructure, and ninety days for all other
applications.”29
The Moratorium Order preempts any ordinance or other written requirement
that “materially inhibit[s]” small cell deployment—whether express or de facto.30
Express moratoria being defined as “statutes, regulations, or other written legal
requirements in which state or local governments expressly prevent or suspend the
acceptance, processing, or approval or applications or permits necessary for
deploying telecommunications services[,]” even if limited in duration.31 And de
facto moratoria are defined as “state or local actions that are not express moratoria,
but that effectively halt or suspend the acceptance, processing, or approval of
applications or permits for telecommunications services or facilities in a manner akin
to an express moratorium. De facto moratoria violate Section 253 only when they
unreasonably or indefinitely delay deployment.”32
27
Id. at 1037 (quoting Small Cell Order ¶ 50).
28
Id. at 1043.
29
Id. (citations omitted).
30
Id. at 1047.
31
Id. (cleaned up).
32
Id. (cleaned up).
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A number of states have since passed or proposed legislation to streamline the
permitting process for small cell deployment—Delaware included.
D. DELAWARE’S ADVANCED WIRELESS INFRASTRUCTURE INVESTMENT ACT
The Delaware Advanced Wireless Infrastructure Investment Act (“State
Wireless Act” or “SWA”) was enacted in August 2017 to foster statewide economic
development in the wireless communications systems arena.33 The SWA opened the
market to non-public utility companies, e.g., privately held wireless service and
infrastructure providers, granting them “access to . . . and the ability to attach to
poles and structures in the state rights-of-way . . . subject to the same policies and
procedures as public utilities.”34
Like its federal analog, the SWA requires “expeditious processes and
reasonable and nondiscriminatory rates” concerning permit applications and
licensing for the installation and maintenance of small wireless facilities.35 DelDOT
is tasked with processing permit applications for the construction, maintenance, and
operation of utility poles or small wireless support structures within state rights-of-
way.36 It must implement nondiscriminatory permit approvals and processes, and
“may not institute, either expressly or de facto, a moratorium on issuing permits or
33
See DEL. CODE ANN. tit. 17, § 1601 et seq. (2019).
34
Id. § 1602.
35
Id.
36
Id. § 1609.
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other approvals for the collocation of small wireless facilities . . . in the [State]
ROW.”37
E. THE CITY WIRELESS REGULATIONS
The City of Wilmington’s home rule Charter grants the City complete
legislative and administrative power over municipal functions.38 That authority has
been described as follows:
The grant includes the power to enact ordinances necessary and proper
for executing any of the City’s express or implied powers. The purpose
of the home rule provisions was to enable municipalities to exercise the
powers of the sovereign except as limited by either the State
Constitution or State statute. Accordingly, a limit to Wilmington’s
sovereignty is explicit in § 802:
Every municipal corporation in this State . . . may, subject
to the conditions and limitations imposed by this chapter,
amend its charter so as to have and assume all powers
which, under the Constitution of this State, it would be
competent for the General Assembly to grant by specific
enumeration and which are not denied by statute.
Thus, the City enjoys complete powers of legislation and administration
relating to its municipal functions.39
Consistent with that authority, the City adopted and incorporated the
Wilmington City Code, which “constitutes a complete recodification of the general
37
Id. § 1609(b)(8). In many local, state, and federal statutes and regulations the term “right-of-
way” is abbreviated to “ROW.” E.g. id. § 1603(19). And so that same shorthand will be used
hereinafter.
38
Schadt v. Latchford, 843 A.2d 689, 691 (Del. 2004).
39
Id. (cleaned up).
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and permanent ordinances of the City of Wilmington, Delaware.” 40 In December
2018, the “Wireless Amendment” was adopted and incorporated into Chapter 42 of
the City Code.41 The City soon thereafter adopted and incorporated the Wireless
Telecommunications Facilities Manual.42 Together, these recent adoptions in the
Code are what comprise the “City Wireless Regulations.”
Those regulations prohibit any activity in City rights-of-way “without first
obtaining any required authorization from the city which may include a franchise,
license, lease or any other form of authorization required under federal, state or
local law.”43 Authorization and permit requirements related to wireless
telecommunications facilities must “meet the minimum requirements set forth
in . . . the Wireless Telecommunications Facilities Manual, in addition to the
requirements of any other applicable law.”44 In addition to use and occupancy
permits, wireless services or infrastructure providers must also obtain a separate
40
WILMINGTON, DEL., CODE (PREFACE) (1993).
41
1 Wilm. C. § 42-701 et seq. (2018) (Right-of-Way Management for Utility Service).
42
Wilmington, Del., Ordinance 18-039 (Dec. 6, 2018) (hereinafter “Wireless Manual”). Though
not included in or appended to the Code, the Wireless Manual is accessible on the City’s website
at: https://www.wilmingtonde.gov/home/showpublisheddocument/8207/636802151213300000.
Among other matters, it details how the City receives and processes applications and clarifies the
procedures “to install, maintain and operate wireless telecommunications facilities in the public
rights of way.” See id. § 1.2.
43
1 Wilm. C. § 42-706(a)(1). “Franchise means the legal authorization granted by the city to a
person to construct, maintain, or emplace facilities upon, across, beneath, or over any public right-
of-way in this city.” Id. § 42-704(o).
44
Id. § 42-706(e)(1) (emphasis added).
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construction permit before commencing any construction within City-managed
rights-of-way.45
All applicants are to be treated “in a neutral and nondiscriminatory manner”
and the regulations shall not “be applied to create any conflict with applicable state
law or applicable and enforceable agreements or easements.”46
F. CROWN CASTLE’S EFFORTS TO INSTALL 5G INFRASTRUCTURE
IN THE CITY OF WILMINGTON
Since 2018, Crown Castle has been seeking the City’s approval to install
thirty-three (33) distributed antenna systems, i.e., nodes, throughout the City of
Wilmington.47 It plans to install twenty-two (22) nodes in City-owned rights-of-way
(hereinafter “City nodes”) and eleven (11) nodes in purported DelDOT-owned
rights-of-way (hereinafter “DelDOT nodes”).48
Before granting any of Crown Castle’s permit applications, the City is
requiring Crown Castle, pursuant to the City Wireless Regulations, to execute a
franchise agreement as a precondition to begin its node placement project.49 Crown
45
Id.; see also id. §§ 42-706(b)-(d) (construction permits required). This requirement is subject
to certain exceptions specified in the Code. Id. § 42-706(b)(3).
46
Wireless Manual §§ 1.3-1.4.
47
Del. Ch. Arg. Tr. at 5; see also Second Am. Compl. ¶ 1.
48
Del. Ch. Arg. Tr. at 5.
49
Id. at 29-32.
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Castle refuses to enter into any such agreement, contending its terms are
objectionable and preempted by the SWA and FTA.50
Further complicating Crown Castle’s quandary is the already-installed nine
nodes in purported DelDOT-owned rights-of-way pursuant to a DelDOT-issued
authorization permit.51 Though installed, these nodes are inoperable until Crown
Castle installs underground safety equipment, i.e., grounding rings, required by
Delmarva Power—a public utility company also regulated by the Public Service
Commission.52 But placement of a grounding ring requires displacing the
sidewalk.53 And that first requires a city construction permit.54 Crown Castle has
sought, and the City refuses to grant, the necessary construction permits.55
Because the City contends the sidewalk is within its jurisdiction, it is requiring
Crown Castle to enter into a separate franchise agreement for the DelDOT nodes,
claiming the grounding rings constitute a “wireless telecommunications facility”
50
See id. at 7-8.
51
Id.; see also DelDOT’s Answer to Second Am. Compl. ¶ 104; DelDOT’s Answering Br. in
Opp’n to Mot. for Summ. J. at 5, Mar. 25, 2022 (D.I. 36).
52
Del. Ch. Arg. Tr. at 21; see Delmarva Power & Light Co. v. City of Seaford, 575 A.2d 1089,
1096 (Del. 1990) (“Public utilities are defined in [26 Del. C. § 102(2)] to include electric and gas
providers such as Delmarva.”). “As a public utility, the statute authorizes it to use public roads as
conduits for electrical service, subject to the consent of municipalities in which it operates.” Id. at
1098 (citing 26 Del. C. §§ 906, 907).
53
Del. Ch. Arg. Tr. at 7.
54
Id.; see 1 Wilm. C. §§ 42-706(b)-(d).
55
Del. Ch. Arg. Tr. at 7.
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under the City Wireless Regulations.56 Thus, the project has been and remains
suspended because the City refuses to issue construction permits unless or until
Crown Castle enters into a franchise agreement with the City.
The parties’ dispute arises out of their differing interpretations of the laws
purportedly authorizing their respective actions. They disagree whether or how the
following statutory and regulatory authorities coexist, and which apply:
(i) the FTA; (ii) the SWA; (iii) the City Wireless Regulations; and (iv) a longstanding
contract between DelDOT and the City (the 1956 Agreement).
At present, nine nodes have been installed in disputed DelDOT-owned rights-
of-way but are inoperable, and the remaining twenty-four nodes are still pending
installation in City-owned rights-of-way (including two supposed DelDOT nodes).
The completion of the DelDOT nodes aspect of the project remains at a standstill
until either: (1) Crown Castle enters into a franchise agreement with the City; or (2)
the Court, via summary judgment, estops the City from enforcing its requirements,
thereby giving Crown Castle the green light to move forward with its project,
including installation of the grounding rings.
56
Id. at 20-21.
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G. THE ENSUING LITIGATION
This case originated in our Court of Chancery where Crown Castle sought
declaratory and injunctive relief.57 After oral argument on Crown Castle’s summary
judgment motion, the Vice Chancellor determined the requested relief sought—the
issuance of a building permit—was a ministerial function, an action sounding in
mandamus that was beyond the Court of Chancery’s limited jurisdiction. 58 So the
matter was then transferred to this Court under 10 Del. C. § 1902.59
Before addressing the merits of the parties’ refiled submissions, it became
clear to the Court that a threshold issue to be determined is who controls the
sidewalks within purported DelDOT-owned rights-of-way, and whether DelDOT
needed to be joined as a necessary party.60 The Court requested supplemental
submissions addressing those concerns. The parties were heard on the supplemented
record, and the Court determined DelDOT indeed was a necessary party.61 DelDOT
has since been joined in this action and has docketed its required responsive
pleadings.62
57
Second Am. Compl. at 1 n.1.
58
Crown Castle Fiber LLC v. City of Wilm., 2021 WL 2838425, at *6 (Del. Ch. July 8, 2021).
59
Order Granting Pl.’s Election to Transfer, Crown Castle Fiber LLC v. City of Wilm., C.A. No.
2019-0656-MTZ, (Del. Ch. Aug. 16, 2021) (D.I. 35); see also Compl., Aug. 16, 2021 (D.I. 1).
60
Court’s Letter to Counsel at 5, Jan. 3, 2022 (D.I. 24).
61
D.I. 29.
62
See D.I.s 33, 36.
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Now before the Court are the parties’ fully briefed submissions related to
Crown Castle’s long-pending summary judgment prayer.
II. PARTIES’ CONTENTIONS
A. PLAINTIFF CROWN CASTLE’S MOTION FOR SUMMARY JUDGMENT
To broadly summarize, Crown Castle seeks a declaratory ruling on:
(i) whether the City has effectively prohibited it from providing wireless services in
violation of the FTA; and (ii) whether the City or DelDOT has jurisdiction over the
already-installed DelDOT nodes. It asserts that the Court’s resolve of its posed
questions of law will wholly settle the underlying dispute.
Crown Castle insists the FTA and SWA preempt the City Wireless
Regulations, and DelDOT cannot now claim—after issuing the permits—that the
SWA does not apply.63 Relatedly, Crown Castle asserts that the Court’s
interpretation of the competing statutes will also provide the clarity needed to
advance the City Nodes aspect of the project.64 As such, Crown Castle asks the
Court to enter judgments declaring:
1. That the City Wireless Regulations are preempted by the FTA;
2. That the City’s draft License Agreement and its related refusal to undertake
any other reviews or approvals related to the project prohibits Crown
63
Pl.’s Reply Br. to DelDOT’s Answering Br. at 18, Apr. 8, 2022 (D.I. 37).
64
Pl.’s Am. Reply Br. in Supp. of Mot. for Summ. J. at 1, Dec. 15, 2021 (D.I. 22) (citing Weiss
v. Weiss, 952 A.2d 149, 152 n.11 (Del. Ch. 2007)).
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Castle from providing telecommunications services in violation of 47
U.S.C. § 253(a);
3. That the SWA gives DelDOT exclusive jurisdiction over small cell
facilities;
4. That the DelDOT nodes are subject to the City Wireless Regulations; and
5. That Crown Castle has obtained all necessary and required permits and
authorizations and may immediately proceed with completing the DelDOT
nodes project—including grounding ring placement.65
B. DELDOT’S OPPOSITION
DelDOT argues judgment in Crown Castle’s favor is not proper.66 According
to DelDOT, it lacks authority under the SWA to issue the digging permit for the
grounding rings because under the 1956 Agreement the City has express jurisdiction
over its sidewalks.67 Too, DelDOT seemingly concedes that it issued the nine
permits under the SWA in error; pursuant to the 1956 Agreement—which it says
governs here—DelDOT’s involvement wasn’t required at all.68
C. THE CITY OF WILMINGTON’S OPPOSITION
The City contends there are genuine issues of fact precluding entry of
summary judgment in Crown Castle’s favor on any count. It first argues that the
1956 Agreement establishes that the thirty-three locations at issue are within the
65
See Second Am. Compl. ¶¶ 122-28 (Count I).
66
DelDOT’s Answering Br. in Opp’n to Mot. for Summ J. at 3. DelDOT takes no position on
Crown Castle’s claims against the City. Id.67
Id. at 19.
68
Id. at 18-20.
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City’s, rather than DelDOT’s, rights-of-way.69 It also contends that the grounding
rings are “wireless telecommunications facilities” as defined by the City Wireless
Regulations and are therefore subject to a license requirement.70
Finally, the City argues that its recent proposed draft License Agreement with
Crown Castle is not facially invalid or unconscionable. Because it is substantially
similar to an existing license agreement between the City and an AT&T subsidiary,
the City says the proposed Agreement does not violate any FTA provisions.71
III. APPLICABLE LEGAL STANDARDS
Delaware Superior Court Civil Rule 56(c) provides that judgment “shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”72 The Court’s principal function in this context is to examine the
record to determine whether genuine issues of material fact exist, but not to decide
such issues.73 Where it appears there is a material fact in dispute or that further
69
City’s Am. Answering Br. in Opp’n to Pl.’s Mot. for Summ. J. at 2, Nov. 30, 2021 (D.I. 20).
70
Id.71
Id.72
Bobcat N. Am., LLC v. Inland Waste Hldgs., LLC, 2019 WL 1877400, at *3 (Del. Super. Ct.
Apr. 26, 2019) (quoting Del. Super. Ct. Civ. R. 56(c) (2022)); see also Brzoska v. Olson, 668 A.2d
1355, 1364 (Del. 1995) (“If the facts permit reasonable persons to draw from them but one
inference, the question is ripe for summary judgment.” (citation omitted)).
73
Merrill v. Crothall-Am. Inc., 606 A.2d 96, 99-100 (Del. 1992) (citations omitted).
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inquiry into the facts would be appropriate, summary judgment will not be granted.74
A review of the record here evidences a contest on statutory (and some
contract) interpretation—a question of law to be decided by the Court.75 As
summary judgment is indeed the proper vehicle when questions of law remain on a
given issue, and trial unnecessary thereon, the Court is satisfied this matter is ripe
for certain summary judgment.76
Delaware courts approach statutory interpretation by first determining
whether ambiguity exists in the statute.77 Like contract interpretation, clear and
unambiguous language in a statute should be given its usual and ordinary meaning.78
It is well-settled that “conclusive evidence of legislative intent” is a plain reading of
the statute’s clear and unambiguous language.79 “Delaware applies equivalent
interpretive rules in the statutory and contractual contexts, refusing to enforce highly
literal readings that lead to absurd results and ending their inquiry to the exclusion
74
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
75
See Dambro v. Meyer, 974 A.2d 121, 129 (Del. 2009) (“Questions of statutory interpretation
are questions of law . . . .” (citation omitted)); Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145
(Del. 2009) (“Questions concerning the interpretation of contracts are questions of law . . .”
(citation omitted)).
76
Pike Creek Recreational Servs., LLC v. New Castle Cnty., 238 A.3d 208, 213 (Del. Super. Ct.
2020), aff’d 2021 WL 3437984 (Del. Aug. 5, 2021).
77
Doroshow, Pasquale, Krawitz & Bhaya v. Nanticoke Mem’l Hosp., Inc., 36 A.3d 336, 342
(Del. 2012).
78
Pike Creek Recreational Servs., LLC, 238 A.3d at 213 (citations omitted).
79
Id. (quoting Magill v. N. Am. Refractories Co., 128 A.2d 233, 236 (Del. 1956)).
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of extrinsic evidence when unambiguous language makes the meaning of the
contract or statute plain.”80
IV. DISCUSSION
A. PREEMPTION BY FEDERAL LAW
Crown Castle asks the Court to declare that the SWA and City Wireless
Regulations are preempted by Section 253(a) of the FTA.81 Before addressing the
merits, however, the Court must first be assured it has subject-matter jurisdiction.
Crown Castle is correct that state courts enjoy a presumption of concurrent
jurisdiction over federal claims absent “an explicit statutory directive” to the
contrary.82 But here, a plain reading of Section 253 indeed reveals an explicit
directive to the contrary. Under Section 253(d), Congress expressly reserved
preemption authority to the FCC for alleged violations of subsections (a) or (b):
If, after notice and an opportunity for public comment, the Commission
determines that a State or local government has permitted or imposed
any statute, regulation, or legal requirement that violates subsection (a)
or (b), the Commission shall preempt the enforcement of such statute,
80
Id. at 213-14 (citations omitted).
81
The Court is satisfied that Crown Castle is a telecommunications services provider under
§ 253. See 33 FCC Rcd. 9088, 9103, n. 84 (“The fact that facilities are sometimes deployed by
third parties not themselves providing covered services also does not place such deployment
beyond the purview of Section 253(a).”); see also id. at 9105, n.87 (agreeing with courts’
interpretations that the scope of “telecommunications services” under § 253 includes “any covered
service a provider wishes to provide, incorporating the abilities and performance characteristics it
wishes to employ”); see also ExteNet Systems, Inc. v. City of Cambridge, Mass., 481 F. Supp. 3d
41, 52 (D. Mass. 2020) (finding wireless infrastructure provider could bring effective prohibition
claim under § 253).
82
Pl.’s Suppl. Mem. at 4-8, June 30, 2022 (D.I. 42).
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regulation, or legal requirement to the extent necessary to correct such
violation or inconsistency.83
Given the statute’s unambiguous language, the Court agrees with those
authorities that have determined no private right of action exists for claims brought
under Sections 253(a) or (b).84 The specific reference to subsections (a) and (b)
coupled with the clear “omission of reference to § 253(c), compels the conclusion
that Congress did not intend to create an implied private right of action for § 253(a);
instead Congress intended for the FCC to enforce § 253(a), while
telecommunications providers may enforce § 253(c).”85 The FCC’s 2018 Small Cell
and Moratorium Orders also support this conclusion.86
Accordingly, Crown Castle’s request for a declaration from this Court
addressing its preemption challenges under Section 253(a) must be DENIED for
lack of jurisdiction.
83
47 U.S.C. § 253(d) (emphasis added).
84
See Qwest Corp. v. City of Santa Fe, N.M., 380 F.3d 1258, 1266 (10th Cir. 2004) (concluding
the legislative history of § 253 is devoid of congressional intent supporting a private right of
action); NextG Networks of NY, Inc. v. City of New York, 513 F.3d 49, 53 (2d Cir. 2008) (holding
no private right of action for damages exists under § 253); Superior Commc’ns v. City of Riverview,
Mich., 881 F.3d 432, 443-44 (6th Cir. 2018) (collecting cases) (concluding no private right of
action exists under § 253(a)).
85
Bristol Tenn. Essential Servs. v. United Tel. Se., LLC, 2015 WL 10096190, at *6 (E.D. Tenn.
Sept. 30, 2015).
86
33 FCC Rcd. 9088, 9138 (“Should factual questions arise about whether a state or locality is
engaged in such [prohibited] behavior, Section 253(d) affords state and local governments and
private parties an avenue for specific preemption challenges.”); see also 33 FCC Rcd. 7705, 7789
(“[C]ourts have concluded that parties may bring section 253(a) preemption challenges directly in
federal court, regardless of the availability of the Commission as a forum to resolve preemption
disputes pursuant to section 253(d).”).
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B. THE CITY’S LICENSE AGREEMENT
To date, a License Agreement has not been executed by the parties. Yet,
Crown Castle seeks a declaratory ruling addressing whether its terms are unfair or
unconscionable. Among other objections, Crown Castle says the terms of the
agreement contain impermissible fees, e.g., annual license fees, increased fees for
“every increase in six (6) cubic feet in volume and each additional wireless provider
that is collocated on the Node,” and the City’s option to increase any of the fees
charged by 2.5 times if there is a unilateral termination.87
Jurisdictional issues aside, the FCC’s Small Cell Order broadly clarified when
fees imposed by a local government fall under Section 253(a)’s prohibition. A given
fee structure may be safe under Section 253(c) if the fees imposed are “reasonable”
and representative of the government’s actual costs.88 The FCC clarified thusly:
ROW access fees, and fees for the use of government property in the
ROW, such as light poles, traffic lights, utility poles, and other similar
property suitable for hosting Small Wireless Facilities, as well as
application or review fees and similar fees imposed by a state or local
government as part of their regulation of the deployment of Small
Wireless Facilities inside and outside the ROW, violate Sections 253 or
332(c)(7) unless these conditions are met: (1) the fees are a reasonable
approximation of the state or local government’s costs, (2) only
objectively reasonable costs are factored into those fees, and (3) the fees
are no higher than the fees charged to similarly-situated competitors in
similar situations . . . .
87
Second Am. Compl. ¶¶ 89-92.
88
33 FCC Rcd. 9088, 9115.
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By contrast, fees that recover more than the state or local costs
associated with facilities deployment—or that are based on
unreasonable costs, such as exorbitant consultant fees or the like—go
beyond such governmental recovery of fundamental costs of entry.89
As Crown Castle has yet to enter into the agreement, further factual
development is necessary to determine whether the fees to be imposed by the City
meet the exempted conditions. Where it appears a material fact is in dispute or
further inquiry into the facts would be appropriate, summary judgment will not be
granted.90 Just so here.
The City argues that its recent proposed draft License Agreement with Crown
Castle is substantially similar to an existing agreement between the City and an
AT&T subsidiary.91 Thus, to ensure the fees to be borne by Crown Castle are no
higher than those charged to a similarly-situated competitor, further inquiry is
necessary. And to the extent the parties dispute whether the AT&T subsidiary is a
similarly-situated competitor, this disputed fact further militates denial of summary
judgment here. Lastly, because local governments may collect fees that are a
reasonable approximation of actual costs incurred, further record development is
required to determine whether the City’s fees represent a reasonable approximation
of its actual costs related to Crown Castle’s use of its rights-of-way.
89
Id. at 9112-13, 9117 (emphasis added).
90
Ebersole, 180 A.2d at 470.
91
City’s Am. Answering Br. in Opp’n to Pl.’s Mot. for Summ. J. at 6.
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In addition to the undeveloped facts, the Court is not assured subject matter
jurisdiction is proper. Crown Castle’s motion must therefore be DENIED.
C. THE SWA DOES NOT GIVE DELDOT EXCLUSIVE JURISDICTION OVER
“SMALL CELL FACILITIES.”
Under Delaware law, state statutes and municipal ordinances and regulations
may coexist, so long as they don’t conflict.92 Where they do, the statute prevails.93
“The predominant test for conflict in a preemption analysis is whether the state
statute was intended to be exclusive. Legislative intent to make a state statute
exclusive of any regulation of the same subject matter by a political subdivision may
be express or implied.”94
1. The plain language of the State Wireless Act bears no indicia of
legislative intent to make it exclusive of any regulation of the same
subject matter by a political subdivision.
To determine express-exclusivity intent, courts first look to the plain language
of the statute or legislative history for an explicit provision declaring “that the state
statute is intended to replace or prevail over any pre-existing laws or ordinances that
govern the same subject matter.”95 The SWA has no such provision.96 The plain
92
Cantinca v. Fontana, 884 A.2d 468, 473 (Del. 2005).
93
Id. (citation omitted).
94
Id. (citations omitted).
95
Id. (citation omitted).
96
See DEL. CODE ANN. tit. 17, § 1601 et seq. (2019).
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language instead evinces legislative recognition and incorporation of DelDOT’s
preexisting, delegated, and/or shared responsibilities with political subdivisions.
The General Assembly conditioned DelDOT’s rights-of-way responsibilities
under the SWA “in accordance with § 131(a) of this title.”97 If DelDOT was meant
to have exclusive responsibility of state rights-of-way under the Act, the General
Assembly wouldn’t have referenced a standard of conduct articulated elsewhere in
the statute.98 No doubt, “in accordance with” is significant of some other criteria to
which DelDOT is already bound.
To be sure, Section 131(a) defines DelDOT’s general jurisdiction, powers,
and duties. “All the public roads, causeways, highways and bridges in this State
which have been or may hereafter be constructed, acquired or accepted by the
Department of Transportation shall be under the absolute care, management and
control of the Department.”99 Moreover, 17 Del. C. § 134(a) constrains some of
those broad jurisdictional powers vis-à-vis political subdivisions:
[DelDOT] shall have no power, authority or jurisdiction of the streets
of any incorporated city or town, except as otherwise provided in this
section, unless such power, authority and jurisdiction shall be
voluntarily given and surrendered by such city or town to the
97
DEL. CODE ANN. tit. 17, § 1602(3) (2019).
98
See Green v. Cnty. Council of Sussex Cnty., 415 A.2d 481, 484 (Del. Ch. 1980), aff’d 447 A.2d
1179 (Del. 1982) (“It is assumed that when the General Assembly enacts a later statute in an area
covered by a prior statute, it has in mind the prior statute and therefore statutes on the same subject
must be construed together so that effect is given to every provision unless there is an irreconcilable
conflict . . . .”).
99
DEL. CODE ANN. tit. 17, § 131(a) (2019) (general jurisdiction) (emphasis added).
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Department and then only upon such terms as the Department shall
prescribe.100
Thus, consistent with Sections 131(a) and 134(a)’s boundaries, the legislature
was careful to limit DelDOT’s obligations under the SWA to “only apply to activities
of a wireless provider within the ROW, over which the Department has absolute
control.”101 The conditional language “over which the Department has absolute
control” further demonstrates the General Assembly’s intent to avoid replacing or
preempting any pre-existing laws or ordinances governing the same subject matter.
As such, no express-exclusivity intent is manifest.
2. The SWA and City Wireless Regulations are not implicitly inconsistent.
Having determined the SWA was not intended to be exclusive, the Court still
must address whether implied-exclusivity intent exists. “Implied exclusivity intent
may be found where the two regulations are inconsistent; for example, . . . the local
ordinance must hinder the objectives of the state statute.”102
The City Wireless Regulations expressly provide that any application of its
provisions shall not “create any conflict with applicable state law or applicable and
enforceable agreements or easements.”103 So, the express deference to state statutory
100
Id. § 134(a) (authority in incorporated towns and cities; construction and maintenance of
highways; local authority).
101
Id. § 1604 (emphasis added).
102
Cantinca, 884 A.2d at 473-74 (citations omitted).
103
Wireless Manual § 1.3.
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law in the event of a conflict is persuasive that they are not inconsistent with or a
hinderance of the SWA’s objectives.104
And like both the FTA and SWA, the City Wireless Regulations are intended
to “permit rapid deployment of . . . [and] clarify the process for applying and
obtaining approval to install, maintain and operate wireless telecommunications
facilities in the public rights of way.”105 All applicants are to be treated “in a neutral
and nondiscriminatory manner with considerations that may be unique to the
technologies, situation and legal status of each particular applicant or request for
right-of-way use.”106
The SWA and corresponding provisions of the City Wireless Regulations are
consistent: “there remains no express or implied preemption-justifying conflict as
between these two regulatory provisions.”107 Accordingly, the SWA and City
Wireless Regulations harmoniously coexist, and wireless services and infrastructure
providers conducting activity in City rights-of-way are subject to the City Wireless
Regulations—Crown Castle included.
104
Cantinca, 884 A.2d at 474 (finding the county ordinance and state statute were not impliedly
inconsistent because both “explicitly defer[] to the stricter regulation in the event of a conflict”).
105
Wireless Manual § 1.2.
106
Id. § 1.4 (Eligibility and Exemptions).
107
Cantinca, 884 A.2d at 474.
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D. THE 1956 AGREEMENT CONTROLS.
DelDOT has statutory authorization to “make and enter into any and all
contracts, agreements or stipulations for the execution of the purposes of [Title
17].”108 And while the SWA gives DelDOT broad control over statewide rights-of-
way, DelDOT has “no power, authority or jurisdiction of the streets of any
incorporated city or town . . . unless . . . voluntarily given and surrendered by such
city or town.”109 As such, DelDOT’s statutory duties are purposefully limited to
preserve the legislative and administrative rights of political subdivisions.
Consistent with the foregoing, the City surrendered some of its municipal
powers to DelDOT—the terms of which are fully articulated in the parties’ 1956
Agreement.110 To date, the Agreement remains in full force and effect and both the
City and DelDOT acknowledge its binding authority.111
The 1956 Agreement allocates responsibility for the repair, maintenance, and
control of certain streets and rights-of-way within the City of Wilmington.112 It
enumerates a litany of streets whose construction and maintenance are DelDOT’s
responsibility.113 Those responsibilities are limited, however, “to face to face of
108
DEL. CODE ANN. tit.17, § 132(c)(9) (2019).
109
Id. § 134(a) (emphasis added).
110
DelDOT’s Answering Br. in Opp’n to Mot. for Summ. J. at 18.
111
City’s Am. Answering Br., Ex. A, Decl. of Kelly A. Williams (“Williams Decl.”) ¶ 4.
112
Williams Decl. ¶ 3.
113
Id. at Ex. A (1956 Agreement).
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curbs and will not include curbs, sidewalk maintenance, street cleaning, drainage
facility cleaning, street lighting, snow or ice removal or control, policing, or any
responsibility whatsoever with respect to traffic . . . .”114
So DelDOT doesn’t have any jurisdiction over City sidewalks. Indeed,
without a specific grant like the 1956 Agreement, DelDOT has no statutory authority
within any political subdivision unless surrendered by that municipality. The 1956
Agreement expressly sets forth the limited responsibilities the City surrendered to
DelDOT, and those responsibilities are narrowly tailored to the explicit exclusion of
the sidewalks.
Nonetheless, DelDOT approved, and Crown Castle installed, nine nodes onto
utility poles housed on sidewalks that are specifically enumerated in and subject to
the terms of the 1956 Agreement.115 It appears this permit approval was in error as
DelDOT neither has jurisdiction over City sidewalks nor does it have “absolute
control” of the subject rights-of-way as required by the SWA. Thus, the City—not
DelDOT—has exclusive jurisdiction over City sidewalks, and incidentally what
have been misnomed till now “the DelDOT nodes.”
114
Id. at Ex. A ¶ 4 (emphasis added).
115
DelDOT’s Answering Br. in Opp’n to Mot. for Summ. J. at 5. The nodes “are installed on
poles outside of the curb face . . . in the City sidewalks that abut the paved road surface,” and are
located as follows: one (1) node is on 2nd Street; three (3) nodes are 4th Street; one (1) node is on
5th Street; one (1) node is on Lancaster Avenue; one (1) node is on Maryland Avenue; one (1) node
is on South Union Street; and one (1) node is on North Washington Street. Id. at 5-6.
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E. THE DELDOT NODES ARE SUBJECT TO CITY WIRELESS REGULATIONS.
The DelDOT nodes have been installed in City-managed rights-of-way and
thus subject to City ordinances. Recall that non-conflicting municipal regulations
and state statutes governing the same subject matter may coexist, but the statute
prevails when a conflict arises.116
1. City Wireless Regulations: Authorization to Occupy the Rights-of-Way
The City Wireless Regulations prohibit the occupancy of wireless services
or infrastructure providers in the rights-of-way without written authorization
“issued by the city, or an authorization of occupancy of the rights-of-way lawfully
issued by the State of Delaware that permits occupancy of the portion of the public
rights-of-way where a facility will be placed without further authorization from the
city.”117 Authorizations may take the form of a “franchise, license, or other written
consent issued by the city.”118
“Statutes are passed by the [legislative body] as a whole and not in parts.
Consequently, each part of the statute must be read in context to produce a
harmonious whole.”119 Here, the repeated use of the disjunctive throughout the
subsections of Section 47-706 makes it clear that prior authorization to occupy the
116
Cantinca, 884 A.2d at 473.
117
1 Wilm. C. § 47-706(a)(2) (emphasis added).
118
Id. § 42-706(a)(3).
119
Daniels v. State, 538 A.2d 1104, 1110 (Del. 1988) (citation omitted).
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rights-of-way favors substance over form. A plain reading demonstrates that the
paramount concern is the prior authorization itself, i.e., permission and notice to
occupy the rights-of-way, rather than the issuing authority.
Though mistaken, it is undisputed that DelDOT issued a public rights-of-
way occupancy agreement for the installation of the DelDOT nodes. So, to the
extent the City is requiring Crown Castle to enter a use and occupancy agreement
in addition to the DelDOT-issued use and occupancy permit, this may be
unnecessary and inconsistent with the manifest intent of the SWA.
2. City Wireless Regulations: Construction Permit & Grounding Rings
As a general matter, Section 42-39 of the City Code requires a construction
permit “prior to the opening of any sidewalk by any licensed contractor for the
purpose of installing water service, gas or other utilities or for any other purpose.”120
The permit appears to be a generally applicable permit, issued readily for a wide
range of installation purposes.
Incidentally, wireless services or infrastructure providers must obtain a
separate construction permit before commencing any construction-related activity
within City rights-of-way.121 Authorization and permit requirements related to
wireless telecommunications facilities must “meet the minimum requirements set
120
1 Wilm. C. § 42-39(a).
121
Id. § 42-706(b).
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forth in . . . the Wireless Telecommunications Facilities Manual . . . .”122 Permits
“for construction of a wireless telecommunications facility . . . are not
authorizations to occupy the public rights-of-way.”123 And any “excavation on
DelDOT maintained roads in the city limits” is subject to state permit requirements
in addition to City construction permit requirements.124
So, the City’s usually effortless issuance of a construction permit for utility
services imposes separate and more onerous requirements on wireless services or
infrastructure providers requesting the same permit. Here the construction permit
is required to install grounding rings to satisfy a Delmarva Power, rather than a City,
standard. Crown Castle says the DelDOT nodes would have been long-ago
operable if not for the grounding ring requirement. But because the City considers
grounding rings “small cell facilities” under the City Wireless Regulations, it
refuses to issue the permit unless or until a franchise agreement is executed. This
duplicative process seemingly conflicts with the SWA, and where a state statute
and municipal ordinance conflict, the statute prevails.125
Thus, the proper resolution of this conflict—where a provider installed
122
Id. § 42-706(e).
123
Id. § 42-706(a)(3).
124
Id. § 42-706(d) (“City of Wilmington construction permits are also required in these
circumstances, however, fees for city permits issued solely for excavation in the public rights -
of-way are waived.”).
125
Cantinca, 884 A.2d at 473.
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infrastructure pursuant to a permit sought and issued in good faith, but the issuing
authority lacked jurisdiction over the territory—would be to implement the
procedures and processes required under the SWA for projects occurring in
DelDOT’s jurisdiction. In other words, what would the DelDOT nodes project look
like—in terms of applications, installation processes, and grounding ring
requirements—if commenced in DelDOT’s exclusive territory?
Given the current record, too many unresolved and underdeveloped facts
remain to competently resolve this issue. And for the same reasons, the Court cannot
determine whether the grounding rings are small wireless facilities under the City
Wireless Regulations.126 Indeed, further record development may reveal that the
City’s refusal to issue a permit for the grounding rings until some other, conditional
criteria is met constitutes FCC-prohibited moratoria.127 In which case, subject
matter jurisdiction would again have to be addressed.
Accordingly, summary judgment on this limited record is improper and
Crown Castle’s motion, to the extent it seeks to force issuance of certain City
126
Recall, in considering this motion for summary judgment, the Court construes the record in the
light most favorable to the City. Merrill, 606 A.2d at 99. And on summary judgment, the Court
“cannot try issues of fact . . . but only is empowered to determine whether there are issues to be
tried.” GMG Cap. Invs., LLC, 36 A.3d at 783 (internal quotation marks and citation omitted).
127
33 FCC Rcd. 7705, 7779-81 (describing de facto moratoria as “blanket refusals to process
applications, refusals to issue permits for a category of structures, [and] frequent and lengthy delays
of months or even years in issuing permits and processing applications”).
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permits and allowance of the nine DelDOT nodes to go live, must be DENIED.128
V. CONCLUSION
For the reasons set forth herein, Crown Castle’s Motion for Summary
Judgment is DENIED. Pursuant to 47 U.S.C. § 253(d), the Court lacks jurisdiction
to determine whether the SWA and City Wireless Regulations are preempted by
Section 253(a). And for the same reasons—notwithstanding the disputed facts
related to the terms and nature of the draft License Agreement, or how the DelDOT
nodes project would fare under the SWA in exclusive DelDOT jurisdiction—
summary judgment is improper and Crown Castle’s motion is DENIED on all
counts.
IT IS SO ORDERED.
_________________________
Paul R. Wallace, Judge
Original to Prothonotary
cc: All Counsel via File & Serve
128
Even if Crown Castle’s were to be considered an application for a writ of mandamus—as the
Court of Chancery intimated it might—Crown Castle would not be due the relief sought. “[T]he
basis for issuance and the scope of relief available through a writ of mandamus under Delaware
law are both quite limited.” Guy v. Greenhouse, 1993 WL 557938, at *1 (Del. Dec. 30, 1993).
Mandamus is an exceptional remedy not available as a matter of right, but only in the exercise of
sound judicial discretion. Ingersoll v. Rollins Broadcasting of Del., 272 A.2d 336, 338 (Del.
1970). And when issued by this Court to command an administrative agency or public official to
perform a duty, that duty must be one “to which the petitioner has established a clear legal right.”
Clough v. State, 686 A.2d 158, 159 (Del. 1996). “For the performance of a duty to be clearly owed
to a petitioner, it must be nondiscretionary or ministerial, meaning that it is ‘prescribed with such
precision and certainty that nothing is left to discretion or judgment.’” Brittingham v. Town of
Georgetown, 113 A.3d 519, 524-25 (Del. 2015) (quoting Guy, 1993 WL 557938, at *1). For the
reasons mentioned, there is no such clearly owed duty of performance here.
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