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February 25, 2019 ',Volume 13 I Issue 4 Zoning Bulletin Process/Final Action — Telecommunications provider challenges oral decision of city zoning board Parties dispute whether oral decision is appealable "final action" under federal law Citation: T Mobile Northeast LLC v. City of Wilmington, Delaware, 2019 WL 150630 (3d Cir: 2019) The Third Circuit has jurisdiction over Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands. THIRD CIRCUIT (DELAWARE) (01/10/19)—This case addressed the issue of whether an oral decision of a zoning board of appeals was a "final action" under the review provision of the federal Telecommunications Act of 1966 ("TCA") (47 U.S.C.A. § 332). It also addressed the issue of whether the timing requirement in the TCA's review provision is jurisdictional. Finally, it addressed whether an untimely supplemental complaint can relate back and cure an unripe initial complaint. The Background/Facts: T Mobile Northeast LLC ("T Mobile"), a wireless telecommunications service provider, applied to the Zoning Board of Adjustment ("ZBA") of the City of Wilmington (the "City") for permission to erect an antenna in the City. The ZBA ultimately denied the request in an oral decision. T Mobile then filed a legal action within 30 days of the ZBA's oral decision, challenging the denial. Two days after the City filed its answer in the action, the ZBA issued its written decision on T Mobile's application. Nearly a year after the ZBA issued its written denial, T Mobile filed a motion in its case, seeking leave to amend or supplement its initial complaint to note the issuance of that written decision. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court granted summary judgment in favor of the City. The district court concluded that T Mobile's initial complaint was "ir- reparably unripe" because both the TCA and Delaware law required the ZBA to issue a written decision before the ZBA's action could be considered "final" (and thus subject to appeal under the TCA review provision). The TCA grants "[a]ny person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof' a right to have that locali- ty's decision reviewed by "commenc[ing] an action" "within 30 days" in district court. (47 U.S.C.A. § 332(c)(7)(B)(v).) The TCA also states that "[a]ny deci- sion by a State or local government or instrumentality thereof to deny 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.A. § 332(c)(7)(B)(iii).) Thus, the district court concluded that T Mobile had filed its initial complaint too soon. The court also concluded that T Mobile's supplemental complaint could not fix the ripe- ness problem because it was filed past the 30-day window for seeking review of the ZBA's final action. T Mobil appealed. On appeal, T Mobil contended that there was jurisdiction to hear its case. It advanced two alternative grounds for reversal: that its complaint was ripe because the ZBA's oral decision qualified as a "final ac- tion" under the review provision of the TCA, and, in the alternative, that its supplemental complaint related back to and cured any ripeness problem with its initial complaint. DECISION: Judgment of district court reversed in part, vacated in part, and remanded. Disagreeing with T Mobile's first argument, the United States Court of Appeals, Third Circuit, held that that an oral decision of the ZBA does not qualify as a "final ac- tion" under the TCA's review provision. However, the court agreed with T Mobile that jurisdiction was proper in the District Court because the timing requirement in the TCA's review provision was non -jurisdictional, and T Mobile's supplemental complaint therefore related back and cured the ripeness problem with the initial complaint. The Third Circuit concluded that the District Court should thus have reached the merits of the dispute. In so holding, the court explained that the terms "act," "final action," and "decision . . . to deny" are not defined in the TCA. Furtheiinore, the court found that the TCA failed to make clear whether "final action" should be read to encompass all decisions to deny, including oral ones. However, looking at the "text and structure" of the TCA, Delaware procedures, Supreme Court reasoning, decisions of sister circuits, and policy arguments, the court found they all supported the conclusion that "a writing is in fact a requirement for a denial to be final" under the TCA's review provision. In light of that conclusion, the court held that, here, the ZBA's oral decision was not a "final action" ripe for judicial review. As such, T Mobile's initial com- plaint's cause of action was "not ripe." Having determined that T Mobile's initial complaint was not ripe for review because the oral decision that it chal- lenged did not constitute a final action, and noting that T Mobile's supplemental complaint was filed more than 30 days after the ZBA's written "final" decision and was therefore untimely under the TCA's review provision (see 47 U.S.C.A. § 332(c)(7)(B)(v)), the court noted that the district court only had jurisdiction if T Mobile's supplemen- tal complaint "cured the ripeness flaw in its initial com- plaint by relating back to the original filing date." That would only be possible, noted the court, if the 30-day time limit in the TCA's review provision was non jurisdictional. And, the court concluded that it was non jurisdictional. The court explained that a Supreme Court -issued "read- ily administrable bright line for determining whether to classify statutory limitation as jurisdictional" was to determine "whether Congress has clearly state[d] that the, rule is jurisdictional." "[A]bsent such a clear statement," the court said that it should treat the restriction as "nonjuris- dictional in character." Here, the court concluded that the 30-day time limit in the TCA's review provision was not 4 ©2019 Thomson Reuters