Decision from U.S. Court of Appeals, Third Circuit...

Federal courts in the Northeastern and Middle Atlantic States are supporting municipalities when carriers sue local jurisdictions. PlanWireless was not surprised that the Third Circuit (including Pennsylvania) would do the same in APT Pittsburgh Limited Partnership v. Penn Township, Butler County of Pennsylvania.

Penn Township restricted personal wireless service facilities to Light Industrial zoning districts exclusively. (Editor's Note: Unless a town is permeated by light industrial – everywhere – this is not going to provide coverage). APT (later Aerial, and now merging with VoiceStream) found it couldn't serve demand where it wanted to from the light industrial zone, so it applied for a variance in the Rural Estate zone.

Penn Township's Zoning Hearing Board (ZHB) denied the variance. APT also challenged the zoning ordinance before the ZHB on two grounds:

• The Zoning Ordinance was "impermissibly exclusionary" under the Pennsylvania Constitution.
• The Zoning Ordinance had the effect of prohibiting service, in violation of Section 704 of the Telecommunications Act.

The three-person ZHB was missing one member that night and split one-to-one on the above challenges, thereby rejecting APT's challenge. APT sued the Township, citing the same two allegations above, and noting that the ZHB's decision on the two above issues lacked substantial evidence in a written record. APT did not contest the ZHB's denial of the variance.

The Federal District Court agreed that the Zoning Ordinance was constitutionally flawed, but did not find a violation of the Telecommunications Act.

Both APT and Penn Township appealed to the Court of Appeals for the Third Circuit. APT pressed its case on the ZHB's record which was the only factual material considered. APT believed that the ZHB did not have substantial evidence to deny the variance in violation of the Telecommunications Act, even though APT did not contest the denial itself.

But the Court of Appeals saw it differently:

We have recently held, for example, that the substantial evidence review contemplated by (the Telecommunications Act) is not applicable to the issue of whether a state's denial of an application to construct a personal wireless service facility "has the effect of prohibiting … personal wireless services."

That decision is to be made de novo by a reviewing court that will not necessarily be limited to the record compiled by the state or local authority.

We reach a similar conclusion with respect to the decision on the validity of Ordinance 109 under the Pennsylvania Constitution. We simply do not believe that this was the kind of decision that Congress had in mind when it passed (the Telecommunications Act). A decision on the "exclusivity" of a zoning ordinance under the Pennsylvania Constitution is a legal issue that is not subject to deferential judicial review.

Decisions on constitutionality and prohibition of service are left to the district courts, and it didn't matter whether the ZHB had substantial evidence on these subjects since they could not rule on them. Perhaps APT was hoping the Appeals Court would remand the case back to the District Court, but instead it was turned down completely by the three-judge panel.

For a decision on whether the Court of Appeals thought the ZHB and the Penn Township Zoning Ordinance have the effect of prohibiting service, the Court relied heavily on the decision in Sprint Spectrum v. Town of Ontario. PlanWireless commented on the Ontario decision in the June 1999 issue. To briefly summarize Ontario, the Court upheld the Town's denial of applications by Sprint Spectrum for three monopoles in 1997. The Town of Ontario denied all three applications, finding that one cell site would have been adequate. The Court upheld the Town's decision because service exists whenever a carrier can make contact to the "national telephone network," no matter how strong or adequate that contact is.

PlanWireless has said it before and will say it again: a weak signal in 1997 in a growing suburb is going to be a non-signal in the year 2007 when many more callers are demanding a connection to the "national telephone network." There will have to be more cell sites in Ontario in order for Sprint customers to have service. So, when capacity runs out, this issue will be heard again, and hopefully the Court of Appeals will be better informed about how PCS technology functions.

APT claimed in its case before the Appeals Court that because it couldn't build a tower it was therefore prohibited from providing service in Penn Township. Other carriers did provide service in the Township and APT wanted to have service also.

But now comes the Third Circuit's interpretations of Sprint Spectrum v. Town of Ontario. In Penn Township, the Third Circuit avers that as long as any carrier has a signal in an area then service is not prohibited. So, APT, following on the heels of other PCS carriers and two cellular companies, was in a portion of the Pittsburgh Major Trading Area that was already covered by at least one other carrier. Here's what the Court said APT needed to prove.

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.

This requirement would mean that an APT subscriber would need to carry another company's cell phone with them because they might fall into an APT "gap," but not another carrier's gap. It would help, of course, to know which carrier is operational in the gap, since there are five companies competing in the Pittsburgh MTA. This does not make sense, unless the remote user wants to carry five handsets around from five different companies.

The Third Circuit then went on to state:

Second, the provider applicant must also show that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve. This will require a showing that a good faith effort has been made to identify and evaluate less intrusive alternatives, e.g., that the provider has considered less sensitive sites, alternative system designs, alternative tower designs, placement of antennas on existing structures, etc.

As planners, we applaud this requirement that alternatives be considered and the least intrusive alternative be selected. It's the first decision PlanWireless has seen where a Court has insisted on alternatives.

But here's the problem in Penn Township: if one carrier is continually denied on the basis of another carrier already providing service in the immediate area, then unreasonable discrimination in favor of the first carrier may result. Why was the FCC allowed to sell licenses to five, six and sometimes eight or nine competitors in the same trade area if the first one in a certain service area can beat the others to the punch?

PlanWireless' thoughts: Ontario was not well written by the Second Circuit and Penn Township is based on a poor interpretation of Ontario.

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