Clear Wireless, LLC v. City of Wilmington, C.A. No. 10-218-MPT, 2010 WL 3463729 (D. Del. August 30, 2010)
N/AOUTCOME: Settled
In Clear Wireless, the United States District Court for the District of Delaware became the first court within the Third Circuit to hold that the Federal Communications Commission’s declaratory ruling ... of November 18, 2009 supplanted the "single provider" rule enunciated by ATP Pittsburgh Limited Partnership v. Penn Township, 196 F.3d 469 (3d Cir. 1999). Section 332(c)(7)(B)(ii)(II) of the Telecommunications Act of 1996 provides that state and local governments may not prohibit or have the effect of prohibiting personal wireless services. The ATP court held that a wireless provider could not establish an effective prohibition of services claim if another carrier already services the area in question. The Clear Wireless Court noted that there was a split of authority among the various Courts of Appeal regarding the test for effective prohibition of services, the Telecommunications Act did not provide a clear and definitive test and the FCC was the agency charged with administering the Telecommunications Act. As a result, the FCC was authorized pursuant to Chevron USA Inc. v. NRDC, 467 U.S. 837 (1984) to interpret the Telecommunications Act by means of a ruling which would have the effect of displacing any contrary court decisions.
