Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Board of Easttown Township

Brаyman dispute argues at issue. therefore reverse the decision of the arbitrable, § claim is not District proceedings 8371 bad-faith Court and remand for however, § consistent may opinion. 8371 claims be with this only by judge as a matter of entertained

Pennsylvania Nealy v. law. See State Ins., 790,

Farm Mut. Auto. 695 A.2d 793- (“[W]e (Pa.Super.1997) conclude that

original jurisdiction to decide issues of

§ 8371 bad faith is vested our trial panel

courts.... [T]he arbitration did not jurisdiction § have to decide the 8371 bad OMNIPOINT COMMUNICATIONS ”). faith claim.... ENTERPRISES, L.P., with, Nealy directly But conflicts Appellant by, preempted therefore is the FAA.3 The FAA prevents undermining state law from ZONING HEARING BOARD OF

parties’ contracts to arbitrate. Mastro EASTTOWN TOWNSHIP Hutton, Inc., buono v. Shearson Lehman 52, 58-59, 63-64, 1212, U.S. S.Ct. No. 02-2194. (1995) (upholding 131 L.Ed.2d 76 arbitra Appeals, United States Court of punitive damages tion of a claim under Third Circuit. provision, contractual arbitration notwith standing New York allowing only state law Argued Dec. 2002. not pu courts —but arbitrators —to award Filed Feb. damages); Corp. nitive Southland v. Keat 1, 16, ing, 465 U.S. 104 S.Ct. (1984) (“Congress [through

L.Ed.2d 1 legisla intended to

FAA] foreclose state attempts

tive to undercut the enforceabili

ty agreements.”); of arbitration Road cf.

way Package Sys., Kayser, Inc. v. (3d Cir.2001) (holding

F.3d 287 that a clause, more,

choice-of-law without did opt

evidence contractual intent into

Pennsylvania governing law arbitration

standards).4

IV. Conclusion context, dispute this we hold that the Brayman

between and Home is arbitrable. Cas., 01-CV-6784, Nealy only Corp. Prop. considered whether a v. Travelers No. Dec.9, Pennsylvania (E.D.Pa. claim was arbitrable under the 2002 WL at *5. Act, Nealy, Arbitration not the FAA. 695 A.2d 2002) (“Section apply 8371 ... does not at 791. claim.”). conduct unrelated to the denial of a viability Brayman's § 8371 cause of 4. We also note that it is whether unclear us, before action is not however. Brayman may bring §an 8371 claim on the Leasing facts оf this case. See Berks Mut. Carlson, Jay (Argued), Lawrence

Paul J. Ellis, Seattle, WA, James & Preston Gates Schubert, Dalton, Riley Christopher ‍‌​‌​​​​‌‌‌‌​​​‌​​​‌‌​​​​‌‌​‌​​‌​‌‌​​​‌‌​‌​​‌​‌​​‍H. C. Paoli, PA, P.C., Riper Colagreco, & Hollín for Appellant. Gawthrop, (Argued), D.H. Rau

Andrew Halsted, Cor- A Professional Greenwood & Chester, PA, Tripodi Paula poration, West Associates, Media, Kaczynski, Holsten & PA, Appellee. SLOVITER, McKEE, point Enterprises,

Before and Communications L.P. ROSENN, Judges. Hearing Bd. Easttown Circuit Town (3d Cir.2001) (Omni ship, 248 F.3d 101 I). remand, point On Magistrate Judge THE OPINION OF COURT (MJ) Hart denied claims be

ROSENN, Judge. Circuit cause he concluded that Omnipoint had important ques- This case raises several failed to “significant gap” establish a or concerning burgeoning tions wireless unreasonable discrimination under industry telecommunications and the inter- TCA, or unconstitutional exclusion under pretation application of the Telecom- Pennsylvania part, law. We affirm in va Act, seq. munications 47 U.S.C. 151 et part, cate in Magistrate remand to the (TCA). Omnipoint is a wireless telecom- Judge for further proceedings. provider munications claims that I. gap is a in the wireless telecommuni-

there cations services available to remote users provider is a licensed of wire- Township, Pennsylvania. digital telephone less communications ser- Omnipoint Zoning Hearing sued the Board such, power vices. As it uses a low radio (ZHB Board) in or the United that signal porta- is transmitted between a States District Court for the Eastern Dis- telephone ble Omnipoint and an antenna. Pennsylvania, claiming trict of that the The antenna then feeds signal the radio ZHB prohibition violated the and anti-dis- an electronic nearby. device that is located provisions by crimination of the TCA de- turn, signal that device connects the nying Omnipoint’s for a request variance ordinary an telephone line and it routes to locate a telecommunications in tower a anywhere in the world. The combination residential district. See 47 U.S.C. equipment of antenna and is known aas 332(c)(7)(B)(i). Furthermore, § Omnipoint signal cell site. Because of the low radio alleges that the ordinance under which its by Omnipoint, range used of the cell application variance was denied violates quite example, site is small. in For East- Pennsylvania law because is either de Township, maximum coverage town jure exclusionary and or de fails to a cell site is two miles. When wireless facto provide a “fair share” of land for (WCF) facility communication is not avail- telecommunications uses. area, specific geographic able to cover a in through customers who live or travel initially The District Court issued a writ experience that area will unreliable ser- ordering grant of mandamus the ZHB to vice, calls, dropped inability anor to con- variance because the Court held nect to the Personal Communication Ser- exclusively ZHB decision relied on aesthet- (PCS) vice network.1 in ic concerns its denial and not on sub- rejection. Omnipoint place stantial evidence supporting sought to PCS tower (E.D.Pa.1999). F.Supp.2d 512 in gap We vacated because of the Omnipoint hoped this writ and remanded the case to in its wireless service. in light flagpole District Court for reconsideration to construct a 110-foot stealth tower, Pittsburgh Township, designed of APT Ltd. v. Penn 24 inches in diameter PCS (3d Cir.1999). tapering 196 F.3d 469 at the base and to 16 inches at Omni- technology 1. PCS differs from ''cellular” in mation in addition to the transmission of digital, that it allows for the wireless trans- voices. video, text, messaging mission of and infor- granted The District Court fiberglass flagpole structure top.2 The summаry judgment part in and motion for incorporate the telecommu- designed to Omnipoint’s appli- grant ordered ZHB to invisi- antennae which would be nications (E.D.Pa.1999).4 cation. 72 flagpole, this outside. For ble from the remand, vacated decision. On space leased on land owned Omnipoint proceed the case parties consented to have Synagogue, located in an Shalom Or in a bench trial before the U.S.M.J. See as residential. Under East- area zoned 636(c); 73.5 The U.S.C. Fed.R.Civ.P. ordinance, zoning a communications town’s supplemented the record with ex- parties permissible use in residen- tower is not pert reports testimony regarding telе- no residential structure tial districts and services Easttown. communications higher thirty-five than feet.3 may be witness, Omnipoint’s principal radio fre- Dugan, supervised Paul quency engineer applied to Easttown Town- Omnipoint six hun- approximately drive tests which ship’s Zoning Hearing Board use forty using actual calls were made dred challenged It also height variances. phones providers. eight cell of various zoning ordinance under validity of the Dugan signal strength that a asserted Pennsylvania Omnipoint law and the TCA. necessary “negative 85 dbm” was for reli- prohibit- ordinance alleged the extant 1, 2002, April able service.6 On the MJ effectively prohibited wireless ser- ed or ZHB. judgment entеred favor of See 189 ZHB held vice in violation of the TCA. (E.D.Pa.2002). F.Supp.2d 258 The MJ hearings applications on the at public three found that had failed to estab- which a number of local citizens com- negative lish a correlation between the plained that the stealth tower would be an ability dBm standard and users’ actual to eyesore. ZHB issued a detailed written telephone national network. access the denying Omnipoint’s application decision weight on placed significant The MJ his stating and that the ordinance was valid finding phones that mobile other than Om- Pennsylvania nipoint’s experienced problems only under both and federal law. 1.96% Judge аt a Katz denied he 2. WCFs must be mounted minimum which ruled height, depending topog- the which varies on that the remedial scheme was suffi- TCA’s vegetation region, raphy of the and the ciently comprehensive Congress' in- to infer covered, area amount of service to be § tent to foreclose 1983 remedies. See proposed other factors. The tower would be F.Supp.2d Judge at 517. Katz also found that thirty-feet by thirty-feet ‍‌​‌​​​​‌‌‌‌​​​‌​​​‌‌​​​​‌‌​‌​​‌​‌‌​​​‌‌​‌​​‌​‌​​‍located within a en- Omnipoint had a substantive due not shown closure, eight-foot high an surrounded process violation. Id. topped fence with barbed wire. chain-link Decision, See ZHB A 668. 5. This case involves a mixture of federal and state The federal claims arise under claims. zoning Omnipoint's applica- 3. At the time of Magistrate Judge jurisdic- the TCA. The had tion, explicitly provide the ordinance did not pursuant tion over these claims to 28 U.S.C. for communications towers. Easttown has Magistrate Judge juris- § The had also since amended its ordinance to allow cellular statutory communications facilities as a conditional use diction to resolve state multi-family in conditional use challenges business and constitutional to the ordinance F.Supp.2d 1367(a). districts. See at 514 n. 2. § pursuant to 28 U.S.C. See Omni- I, point 248 F.3d at 108 n. 5. 4. The District Court did rule on Omni- point’s state law claims or its claim that the any has not cited Federal Com- ZHB's decision violated 47 U.S.C. munications Commission standard for call 332(c)(7)(B)(i)(II) by prohibiting § wireless F.Supp.2d completion rates. See 189 at 264. Omnipoint's also includ- service. federal suit rights § ed a civil claim under 42 U.S.C. 1983 Regrettably, misapplied time in Easttown. See 189 the MJ the of the He at 265. also concluded Penn The test here.8 relevant exclusionary. was not Om- figure analyzed the ordinance to be in determining nipoint timely appealed.7 whether there a significant gap is is a existing consideration of all the remote

II. in users the southern area of Easttown Township, we Township. Dugan Penn established testified: “I know with- if two-prong question test determine the deci out this area Southern zoning authority of a local has “the sion footprint Easttown within the of prohibiting provision per effect of proposed facility currently is lacking sonal services.” wireless U.S.C. coverage.” A consideration of all users 332(c)(7)(B)(i)(II). A provider service must existing Omnipoint include users at facility “show that its fill an must first will the time of inquiry. Omnipoint is not existing significant gap ability already a newcomer: it an existing licen- remote users to access the national tele see in Township. Omnipoint Easttown has Township, Penn phone network.” an existing facility in the business district. met, F.3d at 480. If this burden is the This is not a case where newcomer seeks provider prove must still “that the manner potential to have its customers cаlculated fill proposes significant which it existing contrary, as users. On is a gap in is the least intrusive on the service provider expand seeks to who its service to sought values that the denial to serve.” existing by remedying signifi- customers Id. gap cant in the southern area Township. prong now turn to the first there is a that test to determine whether test, therefore, proper for determin- ability in the remote significant gap ing significant gap whether there is is to the national users to access telecommuni users, telephone look at all wireless includ- focus, therefore, on cations network. We Instead, ing plaintiffs customers. available to all remote users of service only non-Omnipoint MJ looked at users specific all in the area where Om services non-Omnipoint expe- and found that users significant a in nipoint gap asserts there is problems only 1.96% of time in rienced reliable service offered to remote wireless F.Supp.2d at Township. Easttown See 189 by existing providers. users There finding, Magistrate 265. Based on this gap perspective, must a from the be users’ erroneously that Judge concluded Omni- particular provider’s rather than from a point carry had to its burden of failed perspective. Corp. Unity Nextel v. W. proving significant gap. a (3d Cir.2002). 257, Township, 282 F.3d provided by pro figure A in The relevant in the Penn gap the service one in Township analysis aggregate, is the prohibition vider is not sufficient for a of cluding Omnipoint including under users and service claim U.S.C. 332(c)(7)(B)(i)(II) Township, § if but with the telecommunica calls outside community provider’s coverage in a in each area. tions needs of users as WCF’s standard, proper are served. Under MJ’s whole legal Magistrate's conclu April 2002 decision was a final 8. We review the The MJ’s plenary sions under a standard. See Warner- purposes order for the of 28 U.S.C. BreathAsure, Inc., 204 F.3d Lambert Co. v. (3d 1999). 89 n. 1 Cir. (2d Cir.1999), Willoth, 176 F.3d 630 call L.P. v. the actual understates figure 1.96% illumination. opinion to that for we turn places the number Omnipoint failure rate. 5.5%.9 approximately at as “untena- court described Willoth personal that “once proposition ble” carry Thus, may be able to somewhere servers are available wireless in significant gap showing of its burden or local jurisdiction of a state within the Tel. Co. v. service. Cellular Cf. govern- or local government ... the state Park, Harrington Adjustment Bd. of of deny any application further ment could (D.N.J.2000) (holding Thus, the impunity.” Id. at 641. with rate of five to seven that a call failure proof of a court did not intend to foreclose significant gap). The state- percent is a in of the significant gap service because proof in Penn ment telecommu- presence of one or more mere requirеs provider gap in service relevant jurisdiction. The providers in the nication area the new include evidence that the “to Township statement —evi- puzzling Penn already by served facility will serve is not by the new the area served dence in puzzling provider,” another is somewhat already by served another facility “is pertaining light preceding of the statement only to an area with- provider” refer —can fill facility that its will provider’s proof to a by in an any significant gap out service significant gap ability in the existing existing provider. an the national tele- remote users to access effectively Any interpretation other alone, evidencе phone Standing network. older, less would allow the existence of by already an area “is not served impede the functional cellular networks to prohibit provider” another would seem new, technologies development digital any serving an area provider already from competition in the like PCS and undermine pro- provider. another It would served thereby im- industry, telecommunications monopolization and thus conflict with mote policy. policy, That pairing Congressional objectives pro-competitive of the TCA. TCA, seeks to create a expressed as heavily on Because Penn relied de-regulatory national “procompetitive, thoughtful policy designed rapidly “the discussion found framework ac- [it] most private deployment of ad- opinion” Sprint Spectrum, celerate sector the recent miscarriage justice"); though see even Om- on to avoid 9. We reach this conclusion Inc., nipoint time Browning-Ferris, raised this first also Dufrene Generally, Reply (5th Cir.2000) (Courts in its Brief. we do not con Ap- F.3d arguments for the first time in a sider raised error, peals may plain where the review for Brief, Reply but we do have the discretion to or "obvious” and affects error is "clear” exceptional See Hox do so in circumstances. Wilson, rights."); v. "substantial United States Blinder, Co.,& 903 F.2d worth v. Robinson 621, (7th Cir.1992) (Courts F.2d 627 Here, 186, Cir.1990). (3d. 204-05 n. 29 Appeals may for consider an raised Judge ignoring Magistrate since erred in the Reply when an the first time in a Brief issue ascertaining Omnipoint whether users concerned). by serious and was overlooked all significant gap Township, there was a in the case, argument affects the In this the forfeited Omnipoint's argument we will consider to fairness, integrity, public reputation of and justice. miscarriage avoid a Aetna Cas. Cf. Dufrene, judicial proceedings. the Cf. 1546, Autobody, Sur. Co. v. P & B 43 F.3d Township will have F.3d at 268. Easttown (Courts (1st Cir.1994) Appeals may respond adequate opportunity to on remand arguments consider raised for the first time Omnipoint question of whether to the factual Reply arguments a "so com Brief if the are significant gap the correct can show a under virtually appellant's pelling the as to insure legal standard. arguments if "must be ruled success” or the Magistrate Judge Hart found that and information vanced telecommunication horse farmer was not in leasing interested services to all Americans technologies and property that Omnipoint consid- markets by opening all telecommunications ered other sites but did not choose them Rep. No. 104- competition.” H.R. Conf. to Omnipoint because was involved in unre- (1996), reprinted in 1996 at 113 litigation lated with the owners. See 189 10,124. U.S.C.C.A.N. Thus, F.Supp.2d at 262-63.11 the MJ’s Therefore, remanded to this case will be finding flagpole that the stealth was the Judge clearly for reconsideration least restrictive alternative is not Magistrate erroneous. legal standard set forth this under the

opinion.10 IV. Pennsylvania, a land use re

III. municipali striction is valid exercise of a police power it ty’s promotes public when Judge found as a Magistrate health, safety, and welfare and is substan flagpole stealth was fact that tially purpose purports to related possible of the alterna the least intrusive ‍‌​‌​​​​‌‌‌‌​​​‌​​​‌‌​​​​‌‌​‌​​‌​‌‌​​​‌‌​‌​​‌​‌​​‍Kirk Hearing serve. See v. Bd. of F.Supp.2d at 262. We do tives. See 189 (Pa. Brook, Honey 713 A.2d finding it is not not disturb this because Commw.1998). zoning pre A ordinance is “clearly erroneous.” See Warner-Lаm party challenging sumed valid and a it has Co., 204 F.3d at 89 n. 1. The bert heavy proving invalidity. burden of original findings the ZHB’s that Om cites Township, See Penn 196 F.3d at 475. ap nipoint considered few other sites by presumption This can be overcome proached a horse farmer but did not follow proof totally that the ordinance excludes Omnipoint brief also criticizes up. ZHB’s legitimate an otherwise use. See Farrell engaging in studies to assess the Supervisors, Bd. Worcester auditory impact flagpoles visual and of the 481 A.2d 85 Pa.Cmwlth. (1984).12 Exclusionary take neighboring properties. on ordinances Moreover, reasonably persuaded other evidence the MJ could have 10.We are nоt significant provided by Omnipoint to show concluded that a tower in the business district Omnipoint’s expert gap. The MJ held that Omnipoint's gap would not have remedied Dugan had failed to establish a corre- witness Omnipoint explained that the maxi- because negative dBm lation between the standard coverage technology's mum of its cell sites in ability and users’ actual to access the national Township is two miles. telephone Dugan's re- network. own tests phone that cell users in the area below vealed party seeking show 12. A a use variance must negative 85 dBm nevertheless were able zoning unneces- that the restriction "inflicts using non-Omnipoint make and receive calls (1) sary hardship applicant,” and: that on networks. See 189 at 264. unique physical or there are circumstances finding agree with the MJ’s peculiar property that create conditions to the carry showing its burden of that a did not (2) hardship; of these cir- strength negative signal of less than 85 dBm conditions, possibil- no cumstances or there is argued significant gap. Dugan proves alone ity developed in property can be portion active of one of the tests that that the ordinance; (3) conformity zoning with the problem with he conducted understates the applicant did not create the unneces- that the reliability in that areа. Omni- the services' variance, (4) grant- sary hardship; if that the correcting point responsible was for this ed, of alter the essential character would not by closely replicating ac- proof problem more area; variance, (5) granted, if driving equipment. 189 tual habits and See possi- represent the least modification F.Supp.2d 4. would at 264 n. 636 an does not ex- simply ordinance jure and de De because jure de

two forms: facto. ordinance, necessarily on a does not pressly permit where “the use exists exclusion Id. face, legitimate a use.” APT totally negates bans that use. its mean that Cf. “where an ordi- exists P’ship De exclusion v. Lower Yoder Pittsburgh Ltd. facto face, on its but when permits nance a use 664, 670 Township, F.Supp.2d 111 prohibit throughout the use applied acts to (W.D.Pa.2000). Otherwise, would the TCA Id.13 The MJ held municipality.” every change in localities to enshrine force 160-80 was Township Ordinance industry into local the telecommunications exclusionary. jure de nor de neither unrealistically rapid rate. facto at an ordinances agree. id. See facially The ordinance is not not de The ordinance was facto it does not exclusionary. interpreted, As exclusionary Omnipoint argues either. Although use. totally legitimate ban a height contained restrictions explicitly provide for ordinance did zoning effectively prohibit ordinance towers, the ZHB twice telecommunications of functional telecommu the establishment granted variances telecommunications Township. nication facilities in Easttown under a towers the business district thirty-five contained a foot The ordinance F.Supp.2d at 266. provision. catch-all 189 height restriction in residential areas and that a Omnipoint argues telecommunica fifty-foot height in business dis restriction does not fall within the catch tions tower F.Supp.2d See 189 at 267. The tricts. provision all because it is not of the same rejected Magistrate Judge argument this any character” as of the enumer “general рreviously granted the ZHB had because However, interpre ated uses. the ZHB’s facili height variances for communications municipality’s zoning ordinance tation of 268; Township, ties. Id. at see also Penn weight it reflects the is entitled to (explaining 476 that “to suc 196 F.3d at entity an construction of a statute ... exclusionary zoning claim ceed charged application. its execution and with prove had to that no other Sprint Spectrum Zoning Hearing [the Plaintiff] v. including it Township, provider, 46 D. & telecommunications Mahoning Bd. Pa. of ”).14 2000). (CCP 187, Furthermore, self, ... could build a functional tower C.4th regulation general ordinance to the at issue. 53 P.S. morals and welfare than an ble (2002). merely 10910.2 confines that business to a cer which municipality.”). tain area in the Exclusionary impact can invalidate an or exclusionary in dinance without evidence of Omnipoint argues that Easttown Zoning Hearing tent. Overstreet v. Bd. of exclusionary cannot circumvent an otherwise 90, Schuylkill Township, 152 Pa.Cmwlth. zoning by relying ordinance on the availabili- 1108, (1992). party A.2d If rebuts high ty of the hurdles of a variance because constitutionality by presumption presenting of normally applicants face to obtain a must evidence that an ordinance is exclu sufficient 237, Appeal, Girsh 437 Pa. variance. Cf. sionary, burden then shifts to the state to (1970). greater A.2d 395 This has zoning that the ordinance bears dеmonstrate variance, plaintiffs seek a use as force when health, relationship public a substantial Appeal, height vari- in Girsh rather than a Id.; Quar safety and welfare. see also Exton ance. at 268. A use vari- See 189 ries, Adjustment Inc. v. Bd. W. to obtain than a ance is more burdensome Township, Whiteland 425 Pa. 228 A.2d height Hertzberg Zoning variance. Board (1967) (“[A] zoning ordinance which Adjustment City Pittsburgh, Pa. totally particular excludes a business from an (1998). Although 721 A.2d Omni- municipality entire must bear more substan variance, health, safety, sought height relationship public point both a use and a tial to the

637 inability argu munity residents’ to meet their alternative This, needs. it failed to do. principle also the “fair shаre” under ment applies principle “fair share” The fails. V. only partially excludes an ordinance when exclusionary An is use. ordinance original complaint, a land In its Omni- provide for its municipality fails point alleged when that ZHB’s denial of Omni- land use such legitimate of a point’s “fair share” constituted a violation of application 332(c)(7)(B)(i)(I) v. multi-family dwellings. See Surrick as ZHB 47 because U.S.C. Township Hearing Bd. the “pro unreasonably against discriminated of Providence, 182, 476 Pa. 382 A.2d Upper functionally equivalent viders of services.” (1977). plan political units must Local Judge 105 Katz denied this claim on the regulations that provide land-use ground Omnipoint for and had not shown dis categories of all legitimate crimination, the needs meet reasonable or otherwise. See to live within its people may who desire at 515 n. 3. In its cross- 72 decision, See id. at 108.15 Judge Omnipoint boundaries. Katz’s appeal of finding on the did not include the court’s contends that East- Omnipoint I, discrimination issue. provide a “fair Township fails to town at 103. The MJ ruled that this dis F.3d allowance for telecommunications share” properly crimination issue was not before comprises The B-Business District uses. presented him it had not been of Easttown only of the total area 1.1% panel appeal. the on the first See 189 inquiry is Township.16 The relevant F.Supp.2d at 270. “heavy Omnipoint has carried its

whether Omnipoint argues cross-ap that a that the needs of the showing burden” appellee peal only required is when being ade community’s residents are not aspires to appeal an issue on advances Crossing Montgomery See quately served. New the trial court’s decision. alter Cf. Gwyn Lower soc. v. As County Accident & In Castle Hartford (2000); edd, 285, Schubach v. 758 A.2d (3d Co., 1162, 933 F.2d Cir. dem. Silver, Pa. 336 A.2d 1991). any to assert alter Appellee is free (1975). provid Other telecommunications of the District theory support native the needs of have been able to serve ers decision, a formal even without Court’s towers within placing their customers id.; see also Scott v. cross-appeal. See To overcome the business district. (3d Delaware, F.2d 91-92 Univ. of that the ordinance is constitu presumption Cir.1979) (Adams, J., concurring). tional, Omnipoint have had to show would prop is The discrimination issue link area of a causal between the small reject Omni- us and we now erly the com- before for business use and land zoned data; (4) (3) ‍‌​‌​​​​‌‌‌‌​​​‌​​​‌‌​​​​‌‌​‌​​‌​‌‌​​​‌‌​‌​​‌​‌​​‍density percent- population de that the ordinance is facto land; (5) age undeveloped necessarily of total exclusionary focuses on the ordi- Thus, undeveloped percentage land available height the MJ restrictions. nance’s Surrick, at 110. development. 382 A.2d argument. properly rejeсted this finding Surrick, contests this Pennsylvania Supreme 16. 15. In larger than argues district is consid- business several factors to be Court articulated However, at trial. principle Omnipoint asserted was applying “fair ered in share” fact, (1) figure see adopted the as area the MJ 1.1% housing whether the context: finding is not population F.Supp.2d at and this logical development and area for (2) clearly erroneous. present development; growth; level of 638

point’s providers grant- on the merits. The TCA communications that were prohibits unreasonable discrimination in Township. ed variances against “providers functionally equiva- of Omnipoint’s discrimination claim lent sеrvices.” U.S.C. part fails under the second of the test. 332(c)(7)(B)(i)(I). § The TCA does not Permitting the erection of a communica prohibit provid- against all discrimination tower in a tions business district does not ers, only unreasonable discrimination. See compel permit the ZHB to a similar tower Beach, Virginia AT T & Wireless PCS at a later date in a residential district. See (4th Cir.1998). 155 F.3d Willoth, Sprint Spectrum L.P. v. 176 F.3d Nextel, explained we that the (2d Cir.1999); see also H.R. Conf. purpose of the “unreasonable discrimina 104-458, Rep. in reprinted at 332(7)(B)(i)(I) language tion” of is to en (“the at 222 U.S.C.C.A.N. conferees do not municipality sure once allows the intend that if a or local government State enter, provider first wireless the munici district, grants permit a in a commercial pality may unreasonably exclude sub grant permit must also competitor’s for a sequent providers similarly who wish to district”). 50-foot in a tower residential competitive enter and create market The two communications towers that exist Nextel, telecommunications services. See ed in Easttown at the time of 282 F.3d at 264 n. 6. Nextel creates two- application were both located areas part determining zoning test for if a board zoned for business rather than residential First, unreasonably has discriminated. Thus, use. See 72 at 515 n. 3. plaintiff must show that the relevant the ZHB’s denial was not unreasonable providers funсtionally equivalent. are Sec 332(c)(7)(B)(i)(I) Omnipoint’s § chal ond, plaintiff must show that gov lenge fails.17 body unreasonably ernment discriminated.

Id. at 266. VI. equivalency Omnipoint function re significant por- dedicates a

lates to the telecommunications services tion of its brief to direct attack on Penn entity provides TCA, than to Township. points rather the tech It to the which nical particularities operations. “pro-competitive, seeks to create a de-reg- id. at n. Omnipoint hold that ulatory policy is national framework de- functionally equivalent signed to the other tele- rapidly private accelerate sector Omnipoint's argument contrary to the fo- rather "to determine whether there is sub- ugliness monopole previ- cuses on the of the stantial evidence in the record as a whole to ously approved placement the ZHB for at support challenged decision.” Cellular Berwyn Company Fire and the relative Adjustment Tel. Co. v. Bd. granted ease with which a variance was Ho-Ho-Kus, (3d Borough 197 F.3d Berwyn that case. Even Company if the Fire I, Cir.1999); Omnipoint 248 F.3d at 106. uglier monopole proposed than the Omni- Many community objected residents after see- Omni-, structure, point that does not alter ing plans Omnipoint's planning land point's place intention to its PCS tower in an expert conceded that the tower would be "tal- Furthermore, area zoned for residential use. ler than most I have seen” in a residential finding contests the ZHB's that the Decision, area. ZHB A 670. The ZHB and proposed flagpole "blight” would be a flagpole the MJ both found that the 110-foot would "loom over residential communities.” blight would be a that would loom over the weigh Our role "is not to the evidence con- community. finding sup- residential This was tained in the record or substitute own [our] ported by substantial evidence. finder,” conclusions for those of the fact but may receive numerous such re- Boards telecommunica- of advanced deployment study may entail quests a new which technolоgies and ser- and information tion Moreover, expense. time and by opening tele- additional all to all Americans vices may populated by the areas be competition.” to residential markets communications towers, 104-458, disguised. however This unsightly at 113 No. Rep. H.R. Conf. 124; by addressed the Penn situation was (1996), in 1996 U.S.C.C.A.N. reprinted follows: Nextel, n. 6. court as F.3d at 264 see also Township un- that Penn Omnipoint argues necessary provider for the to show [I]t purpose creating Congress’ dermines oppor- denied an more than that was for telecommunications competitive market system. tunity gap to fill a its service privileging the effect of services and has to show a violation of subsec- order technology antiquated 332(c)(7)(B)(i)(II) Willoth, with first entrants an tion under pro- who could subsequent entrants over applicant must provider unsuccessful by creating compe- First, mote consumer welfare provider things. the show two offering superior services. We tition fill facility that will an must show question this because to decline address gap ability in the existing significant Third existing Cir- panel cannot overrule to access the national tele- users remote Oper- 3d Cir. Internal precedent. context, cuit phone network. In this the rel- ating Proc. 9.1. any, gap if is a the service gap, evant gaps all to remote users. Not

available VII. servicе will particular provider’s in a gap in the service available to involve or- Accordingly, Magistrate Judge’s the provider’s showing remote users. for the summary judgment granting der to include on issue will thus have this holding except as to its ZHB is affirmed facility new that the area the evidence significant gap in that there is no telecom- already by served an- serve is not will Township. in Easttown munications service provider. other Mag- to we remand the holding, As to this Second, applicant must also provider con- proceedings Judge for further istrate pro- which it show the manner in that opinion. Two-thirds sistent with this in service significant gap fill poses to appellant. against the the costs are taxed that on the values is the least intrusive This will sought to serve. the denial SLOVITER, Concurring. Judge, Circuit good faith ef- showing that a require a majority’s that the I have reservations identify and eval- made to fort has ‍‌​‌​​​​‌‌‌‌​​​‌​​​‌‌​​​​‌‌​‌​​‌​‌‌​​​‌‌​‌​​‌​‌​​‍been remanding so evidence decision alternatives, e.g., intrusive uate less may Omnipoint users faced problems less sensi- provider has considered in the determination whether be included al- sites, system designs, alternative tive may not con- gap be significant there is a designs, placement tower ternative Pittsburgh holding in APT with our sistent structures, etc. existing on antennae (3d F.3d Township, 196 Ltd. v. Penn (footnote added) omit- (emphasis Id. at 480 Cir.1999). to who seeks every If licensee ted). were tower construct a communications precisely present to Omnipoint appears of the evi- compel recalculation to able by the above encompassed availability of situation wireless dence as Moreover, Township. in Penn language users services remote communications failed to raise spot in the fact have a dead its users principal in its gap calculation communications, Zoning issue of reply it for its brief and reserved brief Township Zoning Board did not

when opportunity suggests to answer

have the afterthought. It

that it was an is not clear gap as to the

whether this calcu- Magistrate

lation raised before the was It

Judge at some time. was not raised at hearing and is considered his

comprehensive opinion.

Nonetheless, I concur because it is clear majority’s opinion

from the that on re- Township Zoning

mand the Board will opportunity challenge

have the Omni-

point’s calculations. the circum- Under

stances, urge Magistrate Judge I

give Township ample leeway to do so.

UNITED of America STATES THOMAS, Appellant

Luther

No. 02-2288. of Appeals,

United States Court

Third Circuit.

Argued Nov.

Filed Feb.

Case Details

Case Name: Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Board of Easttown Township

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 12, 2003

Citation: 319 F.3d 627

Docket Number: 02-2194

Court Abbreviation: 3rd Cir.