Cellular Telephone Company, d/b/a AT&T Wireless Services v. Zoning Board of Adjustment of the Borough of Ho-Ho-Kus is a classic case of "If we want to fix it, we're going to have to break it first."  The U. S. Court of Appeals, Third Circuit has taken apart a decision from a U.S. District Court that was favorable to local government.  This is the same Court of Appeals that recently affirmed a local government's action in APT Pittsburgh Limited Partnership v. Penn Township, Butler County of Pennsylvania (discussed in the January 2000 issue of PlanWireless).

In brief, AT&T proposed to build a tri-location (with Bell Atlantic and NEXTEL) on a borough property.  After 44 public hearings over 2 ½ years, the Ho-Ho-Kus Planning Board denied the application and the three carriers sued.  The carriers claimed violations of the Telecommunications Act and improper use of zoning tests under the State of New Jersey's requirements.  These issues were discussed in the decision by Judge Maryanne Trump Barry that upheld the denial by the borough.  The original decision is discussed in the December 1998 and January 1999 issues of PlanWireless.

The Third Circuit took three types of actions:

·      Affirmed that the Borough Planning Board's finding that nearby homes to the monopole would suffer a loss in property values. 

·      Reversed the District Court's decision that existing service in Ho-Ho-Kus was adequate.  If, as the carriers argued, there were "significant gaps" in service, then denying the application may have been a prohibition of service.

·      Remanded the case back to the District Court, for the Court to develop instructions for the Ho-Ho-Kus Planning Board to "reconsider the proposed facility in compliance with this opinion."

In summary, the case is to be reheard on the issue of "significant gaps" and whether any existed in Ho-Ho-Kus at the time the three carriers applied.

According to PlanWireless, a "significant gap" appears to be a physical hole or dead spot in a network design where the carrier has insufficient resources to deliver "call quality."  For the wireless industry, "call quality" is measured in several ways, including dropped calls, failure to place a call, scratchy or tinny conversations, fading voices, superimposed conversations unconnected to your call and that blinking "no service" light that your handset gets which could mean any or none of these things.  For the consumer, the measure is "adequate service" and there are no standards for adequate service that PlanWireless is aware of.

Who Determines if Service is Adequate?

PlanWireless discussed this question in several 1997 issues when public sector agencies were asking us "Can the public sector determine Level of Service for personal wireless services like they do for streets and highways?"  Kreines & Kreines, Inc. believes that cities and counties should not be in the business of determining the adequacy of service because it's the carriers' concern, not the local government's concern.

In their arguments to the Court of Appeals in Ho-Ho-Kus, the carriers stated that local government had no role in assessing adequacy of service or – in industry terminology – call quality.  The Third Circuit would have none of that argument, stating:

Obviously, local officials must, at a minimum, consider whether wireless service currently exits within their jurisdictions if they are to determine whether rejecting a proposed wireless communications facility would have the effect of prohibiting such service.

Once a local government determines that service does exist, however, how far can the local government go to say it should be improved?  Here the Third Circuit stated:

Efforts to assess existing quality, and to weigh the benefits of enhancing it against the possible costs, must be authorized by and performed within the parameters of governing state and local law.

The Third Circuit decided to use Sprint Spectrum v. Ontario for finding a measure of call quality, and it had nothing to do with costs and benefits.

Significant Gaps

According to the U.S. Court of Appeals, Second Circuit (New York and Connecticut), Sprint Spectrum v. Ontario turned on whether the Town of Ontario's denial would leave Sprint with a "significant gap" in service.  Because all parties (even Sprint) admitted that the Town of Ontario's approval of one 250-foot lattice tower instead of three-150 foot monopoles would still provide service (but not good service), the Judges found that no "significant gaps" would be left in the Town of Ontario.

The Third Circuit reasoned that the Town of Ho-Ho-Kus and Judge Barry should have used the criterion of whether denial of the AT&T tri-location left the Borough of Ho-Ho-Kus with a "significant gap" in service:

We do not attempt here to define what constitutes a "significant" gap in local wireless services.  Rather, we will leave it for the district court to determine, if necessary, whether there is a significant gap in service and, if so, whether there are any less intrusive means for closing that gap.

In PlanWireless' opinion there is no criterion, no definition, no agreement on what constitutes, and no such thing as, a "significant gap."  One can measure signal strength, but that is not a surrogate for human conversation.  The only way to measure human conversation is to listen to it.

It All Depends on Who's Measuring

The carriers in Ho-Ho-Kus contended that they submitted substantial evidence to the Planning Board leading to conclusions of "no service" or service so poor that "even though connections may be made, any conversation would be unintelligible." The Borough of Ho-Ho-Kus contended that two residents (Butler and Johnson) did their own tests.  They tape recorded 12 calls, all of which were fairly clear and intelligible.  The carriers discredited the "Butler-Johnson" test with the Third Circuit on the following basis:

… even if a cellular caller is able to make a connection from certain locations, any subsequent attempt at conversation will be difficult at best, and virtually impossible for users of the hand-held portable phones that dominate the market today."

The providers challenged the evidentiary value of the tape recordings and pointed out that while residents placed twelve calls, AT&T's tests included calls from approximately 2,500 locations within the borough.  Because AT&T conducted five such tests, the total data apparently included at least 12,500 calls.  Underscoring further this dramatic difference in the sample size, the providers point out that of the residents' twelve  calls, only two calls were placed from the worst service areas.  The residents also made the calls in April when few trees had foliage, a significant source of interference; they called while stationary, again avoiding sources of interference; and all of their calls were made on a Saturday when demand was low, yet another variable affecting call performance.  Finally, the residents only recorded the uplink, which is picked up by the more sensitive receiver at a cellular facility and transmitted to a land-line phone.  They did not record the more problematic downlink that a cellular phone receives from its much less sensitive antenna.  Evidence produced from the providers' own test calls indicated that most suffered from some form of technical difficulty.

PlanWireless wonders if AT&T actually made 12,500 calls.  Carriers often use "drive tests" to determine potential service instead of making actual telephone calls.  Drive tests are a machine measurement of signal strength.  PlanWireless has told its readers many times, "gaps" do not occur from lack of signal strength alone.  A cell phone user could be standing within a few hundred feet of a cell site and still not get adequate service.  If the cell site hasn't the capacity for increasing demand, the user may not get a signal.  The carriers themselves admit that demand affects call performance so that low signal strength does not necessarily mean that there is a physical gap at that point.  Rather, it could mean that the carrier has high demand in a particular area at certain times.  Some people may be confusing signal strength with human conversation.

It is noteworthy to PlanWireless that the Third Circuit stated:

Moreover, our own review of the record indicates that the Board either misunderstood or mischaracterized the expert testimony on the issue of existing service.

PlanWireless would be interested in knowing the following two points:

·      Did AT&T actually make cell phone calls, or did they use equipment that measures signal strength rather than human conversation?

·      Did AT&T test all frequencies or just those licensed to AT&T?

But before reading on, it is important for the reader to consider what the judges were looking for: substantial evidence that call quality in Ho-Ho-Kus was so bad that it denied the consumer an acceptable level of service.  Can a machine provide that?

The Recent Penn Township Case is Instructive in Ho-Ho-Kus

A problem with the Third Circuit's acceptance of the three carrier's substantial evidence was in their respective characterizations of "inadequate service."  The Judges cite various measures of low quality services as follows:

A Nextel engineer described his company's mobile radio service in the Borough as "almost non-existent." 

Editor's note:  Nextel was testifying about its own signal, offered at a different frequency than the others.

Similarly, a radio frequency engineer for Bell Atlantic testified that his company's cellular service in the area was marginal at best, and generally unreliable.

Editor's note:  Similarly, Bell Atlantic was testifying for only its signal, which is offered at a different frequency than the others.

A radio frequency engineer for AT&T testified that there were various areas within the Borough where the quality of service was very poor, and other areas where the odds of actually being able to place or receive a call were so low as to render them essentially "no service" areas.

Editor's note:  It follows that AT&T was testifying for only its own signal, which is also offered at a different frequency than the others.

But when Butler and Johnson went out to test their own handsets, which could have been offered by any one of several carriers, how did the Judges know that Butler wasn't using Omnipoint or if Johnson wasn't using Sprint, each of which use different frequencies than the others?  Did the Judges ask if Butler and Johnson were using AT&T, Bell Atlantic or Nextel?

And shouldn't it be obvious that one carrier at one set of frequencies could have better service than another set of frequencies?  So, could one draw the conclusion that while Brand X, Brand Y and Brand Z don't work very well in Ho-Ho-Kus, Brand A and Brand B do work well?  If one were to test for, say, Omnipoint's service and that service proved to be adequate, would there be a "significant gap"?

In APT Pittsburgh Limited Partnership v. Penn Township, Butler County of Pennsylvania, the same Third Circuit stated the following:

First, the provider must show that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network.  In this context, the relevant gap, if any, is a gap in the service available to remote users.  Not all gaps in a particular provider's service will involve a gap in the service available to remote users.  The provider's showing on this issue will thus have to include evidence that the area the new facility will serve is not already served by another provider.

PlanWireless thinks the Penn Township case means that if some other carrier like Omnipoint or Sprint has service in Ho-Ho-Kus with no "significant gaps," AT&T, Bell Atlantic and Nextel can't make the argument that service is prohibited.

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