eBooks, Databases, and other searchable on-line content from askSam


	Contents Prev Next Last

Title Nextel West Corporation v. Unity Township

Date 2002

By Alito

Subject Misc

Contents

Page 1

74 of 238 DOCUMENTS

NEXTEL WEST CORP., a Delaware Corporation d/b/a NEXTEL COMMUNICATIONS v. UNITY TOWNSHIP, WESTMORELAND COUNTY, PENNSYLVANIA, a Political Subdivision of the Commonwealth of Pennsylvania; THE ZONING HEARING BOARD OF UNITY TOWNSHIP; Nextel West Corp., d/b/a Nextel Communications, Appellant

No. 01-2030

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

282 F.3d 257; 2002 U.S. App. LEXIS 3444

October 18, 2001, Argued

March 5, 2002, Filed

PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.

(Dist. Court No. 98-CV--1258). District Court Judge: Honorable Donald E. Ziegler.

DISPOSITION: Reversed and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant communica- tions company sued appellee county township, and its zoning board, seeking permission to install a commu- nications tower within the township's boundaries. The United States District Court for the Western District of Pennsylvania granted summary judgment for the town- ship. The company appealed.

OVERVIEW: The company argued that the township violated the federal Telecommunications Act of 1996, specifically, 47 U.S.C.S. § 332(c)(7), in two ways: (1) its zoning ordinance had the effect of prohibiting communi- cation towers in the township, and (2) the township's dis- parate treatment of the company constituted unreasonable discrimination under 47 U.S.C.S. § 332(c)(7)(B)(i). The appellate court held that the amendment had not mooted the claim since the updated statute did not differ signif- icantly from the original. Specifically, both before and after the amendment, the ordinance effectively prohibited the company from locating a tower in any viable location. Further, as for the continuing availability of requested re- lief, the amendment in no way redressed the company's request for site-specific, injunctive relief. Moreover, the company's claim that the township discriminated against the company, and in favor of a competitor, was also not moot. The district court's opinion did not explain how a change in the text of an ordinance could moot a claim

of past discriminatory conduct. Finally, the company's claims were ripe for adjudication on the merits by the district court.

OUTCOME: The judgment of the district court was re- versed, the case was remanded for adjudication of the merits.

LexisNexis(R) Headnotes

Communications Law > Telephony > Cellular, Mobile

& Wireless Carriers

HN1 Because each wireless telephone company is li- censed by the Federal Communications Commission

(FCC) to use a different radio frequency, and because different companies use different transmission technolo- gies, each wireless provider must deploy its own network of antennae, spaced at intervals so that their cells inter- lock. When no suitable buildings or towers are located in the area where an antennae is needed, a company must build a new tower to provide wireless service in that area. In order to retain its FCC license for a region, a licensee must achieve quality coverage (defined by the industry as the absence of "dropped" calls) for a certain percentage of the region's population within a certain number of years after the license was granted; if the licensee fails to do so, it will forfeit its entire license. 47 C.F.R. § 90.685(d)

(2002).

Communications Law > Telephony > Cellular, Mobile

& Wireless Carriers

HN2 Any wireless telephone tower in an airport's vicinity requires approval from the Federal Aviation Administration.

Communications Law > Telephony > Cellular, Mobile

& Wireless Carriers

Communications Law > Federal Acts >

282 F.3d 257, *; 2002 U.S. App. LEXIS 3444, **1

Page 2

Telecommunications Act

HN3 See 47 U.S.C.S. § 332(c)(7)(B)(i).

Civil Procedure > Justiciability > Case or Controversy

Civil Procedure > Justiciability > Mootness

HN4 The United States Constitution permits a federal court to exercise jurisdiction only over cases or contro- versies. U.S. Const. art. III. If a claim no longer presents a live case or controversy, the claim is moot and the federal court lacks jurisdiction to hear it. This requirement must be met through all stages of federal judicial proceedings, trial and appellate. If the claim is based on a statute or or- dinance that is amended after the litigation has begun, the amendment may or may not moot the claim, depending on the impact of the amendment.

Civil Procedure > Justiciability > Mootness

Civil Procedure > Injunctions

HN5 If an amendment to a statute or ordinance removes those features in the statute being challenged by a claim, any claim for injunctive relief becomes moot as to those features. Similarly, if the amendment provides sufficient relief to the plaintiff, the claim becomes moot.

Civil Procedure > Justiciability > Mootness

HN6 An amendment to a statute or ordinance does not moot a claim challenging the statute or ordinance if the updated statute differs only insignificantly from the orig- inal. A claim is not mooted by the amendment if the gravamen of the petitioner's complaint remains because, although the new ordinance may disadvantage a plaintiffs to a lesser degree than the old one, still it disadvantages them in the same fundamental way.

Civil Procedure > Justiciability > Case or Controversy

Civil Procedure > Justiciability > Mootness

HN7 A claim for damages for the past application of an original statute invests it with a continuing, concrete stake in the outcome of the litigation that has not been redressed by the passage of a recent amendment to the statute.

Governments > Legislation > Effect & Operation > Amendments

Civil Procedure > Justiciability > Mootness

HN8 Courts rejects a rule that permits a defendant to moot a case by repealing a challenged statute and re- placing it with one that differs only in some insignificant respect.

Communications Law > Telephony > Cellular, Mobile

& Wireless Carriers

Communications Law > Federal Acts > Telecommunications Act

HN9 The Telecommunications Act of 1996 states that ordinances are actionable if they prohibit or have the effect of prohibiting the provision of personal wireless services.

47 U.S.C.S. § 332(c)(7)(B)(i). Courts interpret the "effect of prohibiting" clause to include a situation in which a zoning ordinance causes significant gaps in wireless cov- erage. A significant commuter highway presents such a gap. The phrase "effect of prohibiting" means more than simply ensuring that personal wireless services are avail- able somewhere in the relevant jurisdiction. Communications Law > Telephony > Cellular, Mobile

& Wireless Carriers

Communications Law > Federal Acts > Telecommunications Act

HN10 Courts use a two-prong test to determine whether an ordinance has the prohibitive effect that the Telecommunications Act of 1996 (TCA) forbids. To sat- isfy the first prong, the provider must show that its pro- posed facility will fill an existing significant gap in the service available to remote users. This prong is defined as requiring a gap from a user's perspective, rather than a particular provider's perspective. Thus, this prong focuses on whether any provider is covering the gap, instead of whether the gap exists only in a particular company's ser- vice. A provider must include evidence that the area the new facility will serve is not already served by another provider. However, if an applicant is denied a permit to cover an area when other providers have been approved, this may violate a different provision in the TCA: un- reasonable discrimination. Even if a particular provider's gap is already serviced by another provider, the TCA may invalidate the denial of a variance to the new entrant if it has the effect of unreasonably discriminating between providers.

Communications Law > Telephony > Cellular, Mobile

& Wireless Carriers

Communications Law > Federal Acts > Telecommunications Act

HN11 The second prong of the prohibitive-effect test, when challenging a statute regarding installation of a wireless telephone communications tower, requires the telecommunications plaintiff to show that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that denial sought to serve. Examples of a good-faith effort to find and evaluate less intrusive alternatives include: consideration of other sites, other system designs, other tower designs, existing structures, etc.

Communications Law > Telephony > Cellular, Mobile

& Wireless Carriers

Communications Law > Federal Acts > Telecommunications Act

HN12 The Telecommunications Act of 1996 (TCA) re- quires that the regulation of the placement, construction, and modification of personal wireless service facilities

282 F.3d 257, *; 2002 U.S. App. LEXIS 3444, **1

Page 3

by local governments shall not unreasonably discrimi- nate among providers of functionally equivalent services.

47 U.S.C.S. § 332(c)(7)(B)(i). Another two-prong test emerges from this provision. In this analysis, the first prong asks whether the relevant providers are function- ally equivalent. 47 U.S.C.S. § 332(c)(7)(B)(i). If they are, then the second prong asks whether the governmental body unreasonably discriminated among providers. The equivalency of function relates to the telecommunications services the entity provides, not to the technical particular- ities (design, technology, or frequency) of its operations. The TCA does not force competing wireless providers to adopt identical technology or design nor does it compel them to fit their networks of antennae into a uniform, rigid honeycomb of interlocking cells.

Communications Law > Telephony > Cellular, Mobile

& Wireless Carriers

Communications Law > Federal Acts > Telecommunications Act

HN13 To preserve the ability of local governments and zoning boards to take into account the uniqueness of land, the Telecommunications Act of 1996 (TCA) explicitly contemplates that some discrimination is allowed. Any discrimination need only be reasonable. Relief under the TCA's discrimination provision requires a showing that the other provider is similarly situated, i.e., that the struc- ture, placement or cumulative impact of the existing facil- ities makes them as or more intrusive than the proposed facility. Discrimination may be impermissible where a municipality favors one provider by permitting it to lo- cate in a particular area at the exclusion of others, thereby creating unfair competitive advantage.

COUNSEL: CLIFFORD B. LEVINE (Argued), ALICE B. MITINGER, Thorp Reed & Armstrong, LLP, Pittsburgh, PA, Counsel for Appellant.

JOSEPH J. BOSICK, JEANETTE H. HO (Argued), Pietragallo, Bosick & Gordon, Pittsburgh, PA, Counsel for Appellee.

JUDGES: Before: MANSMANN, ALITO, and BARRY, Circuit Judges.

OPINIONBY: ALITO

OPINION: *259

OPINION OF THE COURT ALITO, Circuit Judge:

Nextel West Corporation ("Nextel"), a wireless telecommunications company, has attempted to gain permission from the defendants, Unity Township

("Township") and its Zoning Hearing Board ("ZHB"), to build a 250-foot radio tower on private property in the Township, which is located southeast of Pittsburgh. On appeal to this Court, Nextel argues that the Township violated the federal Telecommunications Act of 1996

("TCA"), see 47 U.S.C. § 332(c)(7) (2000), in two ways:

(1) its zoning ordinance has the "effect of prohibiting" all wireless telecommunications towers in the Township, and (2) the Township's disparate treatment of Nextel and a competitor **2 constituted "unreasonable discrim- ination" under the TCA. 47 U.S.C. § 332(c)(7)(B)(i). The District Court held that the case was mooted by an amendment of the original zoning ordinance and therefore granted the Township's motion for summary judgement on all claims. Because we hold that this case is not moot, we reverse and remand for adjudication of the merits of Nextel's two TCA claims.

To create a wireless network that provides uninter- rupted cell phone service for a given geographical region, a telecommunications company must stitch together a patchwork of transmission cells. An antenna is located in the approximate center of a cell and the antenna trans- mits wireless signals to and from cell phone users in that cell. Because an antenna transmits signals on a line-of-- sight basis, it is typically mounted on a tower or other tall structure. The perimeter of each cell is shaped by the topography surrounding the antenna. Where the terrain is flat, a cell is circular and several miles in diameter. But the hilly terrain of western Pennsylvania distorts the shape and shrinks the size of a cell. The gaps these distortions create complicate the process of stitching **3 together cells to blanket the targeted region.

HN1 Because each wireless company is licensed by the Federal Communications Commission ("FCC") to use a different radio frequency, and because different compa- nies use different transmission technologies, each wire- less provider must deploy its own network of antennae, spaced at intervals so that their cells interlock. Providers usually prefer to mount an antenna on a existing building or telecommunications tower. When no suitable build- ings or towers are located in the area where an antennae is needed, a company must build a new tower to provide wireless service in that area. For a wireless provider, the absence of coverage over a high-use *260 area (e.g., a population cluster or major road) creates legal and com- mercial problems. In order to retain its FCC license for a region, a licensee must achieve quality coverage (defined by the industry as the absence of "dropped" calls) for a certain percentage of the region's population within a cer- tain number of years after the license was granted; if the licensee fails to do so, it will forfeit its entire license. See

282 F.3d 257, *260; 2002 U.S. App. LEXIS 3444, **3

Page 4

47 C.F.R. § 90.685(d) (2002). In addition, the ability to provide **4 uninterrupted coverage in high-use areas is considered essential for a wireless company to remain competitive in that region.

In this case, Nextel had a significant gap in service along a segment of U.S. Route 30, Unity's only major highway. n1 In that area, there were no towers or other tall structures on which Nextel could co-locate a "viable" antenna, i.e., an antenna that would cover Nextel's gap along Route 30. Nextel therefore undertook a thorough search for a location where it could place a viable tower.

n1 A gap in service, i.e., an area not covered by wireless signals, results in dropped calls as callers enter the uncovered area.

The Township's original ordinance permitted telecom- munications towers, inaptly categorized as "utility substa- tions," only in manufacturing zones, and it limited these towers to 75 feet in height, well below the industry av- erage in that region. n2 See App. at 1110. The parties agreed that no tower built in any of the manufacturing districts would be viable. n3 Instead, Nextel **5 iden- tified a nearby 38-acre farm where a viable tower could be located. The farm site was in a residential zoning dis- trict, just beyond the edge of a manufacturing district. The site was near Route 30 and would adequately cover the gap. Moreover, it did not appear that this location would present any aviation problem.

n2 The average height of new cell towers in western Pennsylvania region is allegedly 100-150 feet. App. at 1059, 1064.

n3 Most districts were too close to the air- port. HN2 Any tower in the airport's vicinity would require approval from the Federal Aviation Administration ("FAA"), which was very unlikely, considering the height the tower would need to be to cover the service gap. See App. at 498-99. The re- mainder of the manufacturing districts were veiled from U.S. Route 30 by hills, and thus transmis- sions from a tower there would be topographically blocked.

Nextel applied to the ZHB for a variance to locate a tower on the farm site. In July 1998, the ZHB denied the variance. Nextel also filed **6 an exclusionary chal- lenge with the ZHB attacking the ordinance's validity under the TCA and state law. Nextel contended that the ordinance effectively prohibited wireless telecommuni- cations facilities in the Township. When the ZHB failed to respond, Nextel's exclusionary challenge was deemed

denied. In September 1998, days after Nextel's exclusion- ary challenge was denied, the Township settled a lawsuit filed by Sprint, a competitor of Nextel, after a state court reversed the ZHB's denial of Sprint's variance. See Sprint Spectrum v. Unity Township, 80 Westmoreland L.J. 53

(Pa. Ct. Common Pleas 1998). Sprint had sought to build a cell tower in a manufacturing district to cover a ser- vice gap in its network, but the proposed height of the tower (250 feet) far exceeded the ordinance's limit. In ac- cordance with the settlement agreement, Sprint withdrew its exclusionary challenge against the ordinance, and the Township issued a variance that allowed Sprint to build its 250-foot tower.

Nextel timely filed two TCA actions based on these two denials from the ZHB, and the District Court consol- idated the two actions. While this litigation was pending before the District Court, the **7 *261 Township amended its original ordinance in February 1999 in three ways. First, the amended ordinance allowed wireless telecommunications towers in two additional zoning dis- tricts (agricultural and conservation, but still not residen- tial). Second, it permitted towers as a "special exception" if the site in question satisfied certain criteria. See App. at

1201-06. Third, it raised the maximum height of towers in manufacturing districts to 180 feet and in agricultural and conservation districts to 150 feet (plus 50 feet more if the setback was sufficient). Nextel argues, however, that the criteria to qualify a tower site for a special exception are so burdensome and the additional districts so remote from Route 30 that, in actuality, Nextel's ability to obtain approval for a viable tower was effectively unaltered by the amendment.

After the amendment, the parties filed cross-motions for summary judgment. Nextel argued that the summary judgment record showed that (1) the original ordinance was impermissibly exclusionary under state law, (2) the original ordinance violated the federal TCA by effec- tively prohibiting wireless telecommunications services, and (3) the Township violated the **8 TCA by un- reasonably discriminating in favor of Sprint. The District Court granted summary judgment to the Township. It held that Nextel's claims under the TCA were mooted by the

1999 amendment of the ordinance. Absent any allegation of diversity jurisdiction, the District Court found it had no supplemental jurisdiction over the pendent state law claims and dismissed them without prejudice.

II.

This appeal presents three primary issues: (1) whether the 1999 amendment to the ordinance renders Nextel's two TCA claims either moot or unripe, (2) whether the ordi- nance has the "effect of prohibiting" wireless facilities and thus violates the TCA, and (3) whether the Township vi-

282 F.3d 257, *261; 2002 U.S. App. LEXIS 3444, **8

Page 5

olated the TCA by "unreasonably discriminating" against Nextel. n4 Nextel requests an injunction directing the Township to permit Nextel to build a 250-foot tower on the farm site. The District Court's opinion addressed only the first issue (mootness) and found it dispositive. We hold that the 1999 amendment to the Township's ordinance did not moot either of Nextel's two claims under the TCA. We therefore remand the case to the District Court to adjudi- cate the merits of Nextel's two TCA claims and any state law claims **9 over which supplemental jurisdiction is appropriate.

n4 HN3 The TCA provides, in relevant part, as follows:

The regulation of the placement, con- struction, and modification of personal wireless service facilities by any State or local government or instrumental- ity thereof -- (I) shall not unreasonably discriminate among providers of func- tionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

47 U.S.C. § 332(c)(7)(B)(i) (emphasis added).

HN4 The Constitution permits a federal court to ex- ercise jurisdiction only over cases or controversies. See U.S. Const., art. III. If a claim no longer presents a live case or controversy, the claim is moot and the federal court lacks jurisdiction to hear it. See Allen v. Wright,

468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315

(1984). This requirement must be met "through all stages of federal judicial proceedings, trial and appellate." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 108 L. Ed.

2d 400, 110 S. Ct. 1249 (1990). **10 If the claim is based on a statute or ordinance that is *262 amended after the litigation has begun, the amendment may or may not moot the claim, depending on the impact of the amendment.

On the one hand, HN5 if an amendment removes those features in the statute being challenged by the claim, any claim for injunctive relief "'becomes moot as to those features.'" Khodara Envtl., Inc. v. Beckman, 237 F.3d 186,

194 (3d Cir. 2001) (holding that facial constitutional chal- lenges -- on equal protection and other grounds -- were mooted by an amendment that significantly broadened the statute's scope and thus alleviated these facial claims)

(quoting Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515,

1520 (11th Cir. 1992); see also Diffenderfer v. Central

Baptist Church, 404 U.S. 412, 414-15, 30 L. Ed. 2d

567, 92 S. Ct. 574 (1972) (holding that a facial chal- lenge was mooted by an amendment that substantially altered the objectionable statutory provision). Similarly, if the amendment provides sufficient relief to the plain- tiff, the claim becomes moot. See U.S. Dept. of Treasury v. Galioto, 477 U.S. 556, 559-60, 91 L. Ed. 2d 459, 106

S. Ct. 2683 (1986) **11 (holding that an amendment that gave plaintiffs a new administrative remedy mooted constitutional challenges regarding equal protection and irrebuttable presumptions); Black United Fund of New Jersey, Inc. v. Kean, 763 F.2d 156, 160-61 (3d Cir. 1985)

(holding plaintiff's claims were mooted by an amendment because the "raison d'etre for the injunction no longer ex- ists," and noting that the amendment "will give plaintiff substantially the relief it sought in the district court").

On the other hand, HN6 an amendment does not moot the claim if the updated statute differs only in- significantly from the original. See Northeastern Florida Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662, 124 L. Ed. 2d

586, 113 S. Ct. 2297 (1993) (rejecting a misinterpretation of the holding in City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 71 L. Ed. 2d 152, 102 S. Ct. 1070

(1982), that would permit "a defendant to moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect"). A claim is not mooted by the amendment if the "gravamen of peti- tioner's complaint" **12 remains because, although the new ordinance "may disadvantage plaintiffs to a lesser degree than the old one," still "it disadvantages them in the same fundamental way." Id.; see also Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219

F.3d 1301, 1313-15 (11th Cir. 2000) (holding the chal- lenged provisions of the old ordinance "have not been sufficiently altered by the amendment so as to eliminate the issues raised" and that the violations alleged under the old ordinance could be reasonably expected to continue under the new ordinance); Naturist Soc'y, 958 F.2d at

1520 ("Where a superceding statute leaves objectionable features of the prior law substantially undisturbed, the case is not moot. . .. To the extent that those challenged features remain in place, and changes in the law have not so fundamentally altered the statutory framework as to render the original controversy a mere abstraction, the case is not moot.").

In Khodara, we held that, although facial challenges were mooted by the amendment, the as-applied chal- lenges were not moot because relief was still available for these claims, which the amendment had not **13 redressed. n5 See Khodara, 237 F.3d at *263 195-

96. In Rosetti v. Shalala, 12 F.3d 1216 (3d Cir. 1993), we

282 F.3d 257, *263; 2002 U.S. App. LEXIS 3444, **13

Page 6

held the case was not mooted by the promulgation of new regulations because they gave plaintiffs "only some, not all, of the relief they sought." 12 F.3d at 1233. Although the plaintiffs had requested relief in the form of new regu- lations, they had also sought a separate form of injunctive relief that was unaddressed and was therefore not mooted by these new regulations. See id.

n5 In Khodara, we determined the mootness of plaintiff's claims according to the availability of relief after the statute was amended. After the statute was amended, the prospective declaratory and injunctive relief sought through the facial chal- lenges was moot, but the damages sought through the as-applied challenges saved these latter claims from mootness. HN7 The plaintiff's "claim for damages for the past application of the original statute invests it with a continuing, concrete stake in the outcome of this litigation that has not been re- dressed by the passage of the recent Amendment."

237 F.3d at 196.

We reject the Township's mistaken argument that seizes on the existence of a claim for damages as the litmus test for mootness. The Township's contention -- because Nextel seeks only injunc- tive relief and not damages, the 1999 amendment moots Nextel's claims -- misinterprets our reason- ing in Khodara. It was the continuing availability of relief, unredressed by the amendment, that kept the controversy alive in Khodara. Similarly, the relief requested by Nextel -- declaring the ordinance in- valid and/or enjoin the Township to permit Nextel to build its farm-site tower -- remain meaningful and available after the 1999 amendment.

**14

1. Claim of Prohibitive Effect. Applying this case law to Nextel's first TCA claim, we hold that the Township's amendment did not sufficiently alter the ordinance to moot the question whether Unity's ordinance effectively prohibits wireless facilities. Even though the amendment did, on its face, loosen the zoning restrictions on wireless towers, the controversy over its effect remains alive, and injunctive relief remains available. According to Nextel, both before and after the amendment, the ordinance ef- fectively prohibited Nextel from locating a tower in any viable location. Nextel argues that the changes introduced by the amendment -- an increase in height limits, the ad- dition of two types of zoning districts, and the special exception procedure -- still provided no feasible location for a tower that could cover the gap in service. Under the Khodara analysis, the challenged feature of the original ordinance (i.e., its allegedly prohibitive effect) was not

removed by the amendment.

In the language of Northeastern Florida Chapter, both before and after the amendment, "the gravamen" of Nextel's complaint remained: the allegedly prohibitive effect of the Township's ordinance still **15 violated the TCA. 508 U.S. at 662. Both before and after amendment, Nextel was allegedly "disadvantaged in the same funda- mental way": it still cannot place a viable tower anywhere in the Township. Id. As for the continuing availability of requested relief, crucial in Rosetti, the amendment in no way redressed Nextel's request for site-specific, injunc- tive relief.

In holding that Nextel's TCA claims were moot, the District Court did not compare the effect of the original ordinance and the amended ordinance. It did not discuss whether and to what extent the allegedly prohibitive ef- fect of the original ordinance had been altered by the amendment. Instead, the Court reasoned that because the amendment added something to the ordinance -- namely, criteria under which towers could be permitted as special exceptions -- Nextel's claims had become moot. See App. at 19-20. The District Court relied on Burke v. Barnes,

479 U.S. 361, 363, 93 L. Ed. 2d 732, 107 S. Ct. 734 (1987) and Diffenderfer for the proposition that a statute's expi- ration or repeal deprives the plaintiff of injunctive and declaratory *264 relief. But that rule is inapplicable here, because the original **16 ordinance was merely amended. More appropriate for these facts is the mootness inquiry from Northeastern Florida Chapter and Khodara, i.e., whether the amendment sufficiently altered or re- moved the challenged aspects of the original legislation to moot the underlying claims.

2. Claim of Unreasonable Discrimination. In addition to its claim that the Township's ordinance violated the TCA by effectively prohibiting cell towers, Nextel also claimed that the defendants violated the TCA by discrim- inating against it and in favor of a competitor, Sprint. We hold that this claim is also not moot. The District Court failed to make a distinction between Nextel's two separate TCA claims. The District Court's opinion did not explain how a change in the text of an ordinance could moot a claim of past discriminatory conduct.

Nextel seeks a remedy for the Township's decision to deny its variance request, while granting a similar vari- ance to Sprint. The variance permitted Sprint to build its tower in a manner otherwise impermissible under either the original or amended ordinance. Even if the amendment had mooted Nextel's first claim by purging the ordinance of its allegedly prohibitive effect, the **17 amendment in no way altered Nextel's claim of unreasonably discrim- inatory conduct by the Township. This controversy is very much alive.

282 F.3d 257, *264; 2002 U.S. App. LEXIS 3444, **17

Page 7

Although the District Court did not discuss ripeness, the appellees have urged us to affirm the decision of the District Court on the alternative ground that Nextel's claims are not ripe. We are convinced, however, that Nextel's TCA claims are ripe for adjudication on the merits by the District Court. We reject the Township's argument that Nextel's claims are unripe because Nextel has not yet applied for a permit or variance under the amended ordinance. We find the Township's position -- that any amendment to a zoning ordinance forces an ap- plicant to reapply in order for its TCA claim to ripen -- extreme and contrary to precedent.

The Township's position would enable a municipal- ity to trap telecommunications plaintiffs in a litigation limbo between mootness and unripeness, frustrating the TCA's purpose. Under the Township's approach, as long as a municipality passed an insignificant amendment after each TCA action was filed, it could block telecommuni- cations plaintiffs' access to court, even though expedited review in federal court is the benefit **18 Congress expressly intended to confer on wireless providers by en- acting the TCA. See 47 U.S.C. § 332(c)(7)(B)(v). The Supreme Court squarely rejected this theory when dis- cussing mootness in Northeastern Florida Chapter. See

508 U.S. at 662 ( HN8 rejecting a rule that would permit

"a defendant to moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect"). We thus hold that Nextel's claims are ripe.

On remand, the District Court must weigh the mer- its of two TCA claims that require separate analyses but work together to effectuate the purpose of the statute. n6

*265 First, the District Court must determine whether the ordinance had a prohibitive effect on wireless facili- ties. Second, it must decide whether the Township unrea- sonably discriminated against Nextel.

n6 The Federal Telecommunications Act of

1996 seeks to create "a pro-competitive, de- regulatory national policy framework designed to rapidly accelerate private sector deployment of ad- vanced telecommunication and information tech- nologies and services to all Americans by open- ing all telecommunications markets to competi- tion." H.R. Conf. Rep. No. 104-458 at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124. It seeks to balance this goal against the legitimate concerns of state and local governments in regulating the siting of wireless facilities. See H.R. Conf. Rep. No. 104-204, at 94-95 (1995), reprinted in 1996

U.S.C.C.A.N. 61.

Though Nextel makes two separate claims un- der the TCA, the two provisions from which these claims derive -- effectively prohibit and unrea- sonably discriminate -- work together to promote the expansion of wireless telecommunications net- works by protecting telecommunications plaintiffs. The first provision (forbidding ordinances which effectively prohibit wireless facilities) aims to open up municipalities to wireless providers gen- erally. The second provision (against unreasonable discrimination) seeks to ensure that, once the mu- nicipality allows the first wireless provider to enter, the municipality will not unreasonably exclude sub- sequent providers who similarly wish to enter and create a competitive market in telecommunications

services.

**19

1. Prohibitive effect. HN9 The TCA states that or- dinances are actionable if they "prohibit or have the ef- fect of prohibiting the provision of personal wireless ser- vices." 47 U.S.C. § 332(c)(7)(B)(i) (2000). The statute does not define what constitutes prohibitive effect, but case law provides guidance. We have interpreted the "ef- fect of prohibiting" clause to include a situation in which a zoning ordinance causes "significant gaps" in wireless coverage, and we have suggested that a "significant com- muter highway" would present such a gap. Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Ho-ho-- kus, 197 F.3d 64, 70 (3d Cir. 1999) (finding the phrase "ef- fect of prohibiting" to mean "more than simply ensuring that personal wireless services are available somewhere in the relevant jurisdiction").

A recent decision by this Court involved facts sim- ilar to those now before us. n7 In APT Pittsburgh Ltd. Partnership v. Penn Township, 196 F.3d 469 (3d Cir.

1999), we HN10 adopted a two-prong test to determine whether an ordinance had the prohibitive effect that the TCA forbids. n8 See 196 F.3d at 480-81. To satisfy the first prong, "the provider must show that its proposed

**20 facility will fill an existing significant gap ... in the service available to remote users." 196 F.3d at 480. We defined this prong as requiring a gap from a user's perspective, rather than a particular provider's perspec- tive. Thus, this prong focuses on whether any provider is covering the gap, instead of whether the gap exists only in, for example, Nextel's service. A provider must "in- clude evidence that the area the new facility will serve is not already served by another provider." n9 Id. In the present case, the relevant testimony on this issue is scant and conclusory, but it suggests that a gap existed for all

282 F.3d 257, *265; 2002 U.S. App. LEXIS 3444, **20

Page 8

providers *266 and not only Nextel. n10 In oral argu- ment, counsel for Nextel asserted that no provider covers this gap but did not refer to any evidence. On remand, the District Court should make a factual determination as to whether this service gap existed for all or for Nextel alone.

n7 The wireless provider suffered from a gap in coverage along a hilly township's major high- way corridor. It unsuccessfully sought a variance to locate a tower in a rural area (zoned residen- tial). A zoning amendment then restricted wireless telecommunications towers to three manufactur- ing districts, none of which were technologically feasible and available for the provider. See APT Pittsburgh, 196 F.3d at 472.

**21

n8 The test is also employed in Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 639 (2d Cir. 1999).

n9 However, if an applicant is denied a permit to cover an area when other providers have been approved, this may violate a different provision in the TCA: unreasonable discrimination. Both the Willoth and APT Pittsburgh courts note that, even if a particular provider's gap is already serviced by another provider, "the TCA may invalidate the denial of a variance to the new entrant if it has the effect of unreasonably discriminating between providers." APT Pittsburgh, 196 F.3d at 480 n.8.

n10 According to the affidavit of Nextel's ex- pert witness, Mr. Monfredi (an outside consultant and engineer) concluded that, after conducting tests using multiple sites and frequencies, "no licensed provider of wireless telecommunications services, regardless of the frequency at which it operates, can provide functional service to the Unity Corridor and to the Unity Communities if such carrier is required to strictly comply with either the 1998 Ordinance or the Subsequent 1999 Ordinance." App. at 1379-

80.

The Township did not refute this statement with any evidence. Instead, it objected that Monfredi's tests insufficiently explore possibilities under the amendment's increased height allowances.

At minimum, the record shows that not a sin- gle cell tower has been permitted in the Township under the ordinance. The sole tower (Sprint's) was built pursuant to a variance from limits imposed by the ordinance, granted only as part of a settlement. See App. at 1188, 1191.

**22

HN11 The second prong of the prohibitive-effect test in APT Pittsburgh requires the telecommunications plaintiff to show "that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that denial sought to serve." Id. The court offered examples of a good-faith effort to find and eval- uate less intrusive alternatives: consideration of other sites, other system designs, other tower designs, existing structures, etc. See id. Whether the farm site is the least intrusive means to fill the gap in service is a decision for the District Court on remand. We note that Nextel put forward testimony suggesting that its proposal is rela- tively unintrusive. n11 The record lacks a direct response from the Township regarding intrusiveness; instead the Township referred (but did not commit itself) to an al- ternative proposal to build two or three shorter towers. n12

n11 Nextel's expert witness stated that "where collocation on existing structures is not feasible, it is commonplace for municipalities to prefer the construction of a single tower to multiple towers. This preference holds even if the single tower must be built to a greater height than would be necessary with additional sites." App. at 1387-88.

**23

n12 Nextel's expert witness testified that the use of multiple sites "has many limitations that make it impractical." App. at 1382.

2. Unreasonable discrimination. Independent of Nextel's claim of prohibitive effect, Nextel makes a claim of unreasonable discrimination under the TCA. HN12 The TCA requires that the "regulation of the placement, construction, and modification of personal wireless ser- vice facilities by local governments ... shall not un- reasonably discriminate among providers of functionally equivalent services." 47 U.S.C. § 332(c)(7)(B)(i). Another two-prong test emerges from this provision. See APT Pittsburgh Ltd. P'ship v. Lower Yoder Township, 111 F. Supp. 2d 664, 674-75 (W.D. Pa. 2000). In this analysis, the first prong asks whether the relevant providers are "func- tionally equivalent." 47 U.S.C. § 332(c)(7)(B)(i). If they are, then the second prong asks whether the governmental body "unreasonably discriminated among providers." Id. In the instant case, the record clearly shows that Sprint and Nextel are functionally equivalent. **24 n13 On

*267 remand, therefore, the District Court should exam- ine whether the Township's discrimination against Nextel

282 F.3d 257, *267; 2002 U.S. App. LEXIS 3444, **24

Page 9

and in favor of Sprint was reasonable.

n13 We think the equivalency of function re- lates to the telecommunications services the entity provides, not to the technical particularities (de- sign, technology, or frequency) of its operations. The TCA clearly does not force competing wire- less providers to adopt identical technology or de- sign nor does it compel them to fit their networks of antennae into a uniform, rigid honeycomb of in- terlocking cells. Indeed, the FCC's assignment of a different frequency and signal strength to each li- censee renders such uniformity impossible. In this region, Sprint and Nextel provide the same ser- vice -- personal wireless communications services to remote users -- and therefore are functionally equivalent.

HN13 To preserve the ability of local governments and zoning boards to take into account the uniqueness of land, the TCA "explicitly contemplates that some discrim- ination .. **25 . is allowed. Any discrimination need only be reasonable." AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F.3d 423, 427 (4th Cir.

1998); see also Sprint Spectrum, L.P. v. Willoth, 176 F.3d

630, 638 (2d Cir. 1999). In a footnote in APT Pittsburgh, we stated that relief under the TCA's discrimination pro- vision "will require a showing that the other provider is similarly situated, i.e., that the 'structure, placement or cumulative impact' of the existing facilities makes them as or more intrusive than the proposed facility." 196 F.3d at 480 n.8. Discrimination may be impermissible where a municipality favors one provider by permitting it to lo- cate in a particular area at the exclusion of others, thereby creating unfair competitive advantage. See Western PCS II, Corp. v. Extraterritorial Zoning Auth., 957 F. Supp.

1230, 1237-38 (D.N.M. 1997).

The record before us is insufficient to determine con- clusively whether Sprint and Nextel were indeed simi- larly situated and whether the Township's discrimination was unreasonable. Thus far, Nextel has shown strong similarities between the two situations. Initially, both Sprint and **26 Nextel had a service gap in the Township, both proposed to build a 250-foot tower, both were denied a variance, both appealed the ZHB's de- nial, and both filed exclusionary challenges against the Township. However, after the Court of Common Pleas of Westmoreland County reversed the denial of Sprint's vari- ance, the Township decided to settle with Sprint. Pursuant to the agreement, the Township gave Sprint the site- specific relief it requested (a variance to build its 250- foot tower) and Sprint withdrew its exclusionary chal- lenge. By contrast, Nextel received no variance and no explanation as to why its exclusionary challenge was de- nied only days before the Township settled with Sprint. If, on remand, the District Court can find no reasonable basis for this discrimination, then Nextel should prevail on this claim.

III.

For the reasons explained above, the order of the District Court granting summary judgment in favor of the Township is REVERSED and the case is remanded for three fact-specific determinations: (1) whether the service gap was suffered by all wireless providers or only Nextel, (2) whether erecting a tower at the farm site pro- posed by Nextel was the least intrusive means **27 for covering the gap in service along U.S. Route 30, and (3) whether the Township's discrimination between Nextel and Sprint was unreasonable. If the District Court finds that no provider was covering the service gap and that the farm site was the least intrusive means of covering that gap, or it finds that the Township's discrimination was un- reasonable, then Nextel is entitled to remedies available under the TCA.

Contents Prev Next Last