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

February 12, 2003

OMNIPOINT COMMUNICATIONS ENTERPRISES, L.P., APPELLANT
v.
ZONING HEARING BOARD OF EASTTOWN TOWNSHIP



Appeal from the United States District Court For the Eastern District of Pennsylvania D.C. No.: 99-cv-2080 Magistrate Judge: The Hon. Jacob P. Hart

Before: Sloviter, McKEE, and Rosenn, Circuit Judges.

The opinion of the court was delivered by: Rosenn, Circuit Judge

Opinion vacated May 13, 2003.

OMNIPOINT COMMUNICATIONS ENTERPRISES, L.P., APPELLANT
v.
ZONING HEARING BOARD OF EASTTOWN TOWNSHIP

Appeal from the United States District Court For the Eastern District of Pennsylvania D.C. No.: 99-cv-2080 Magistrate Judge: The Hon. Jacob P. Hart

Paul J. Lawrence, Esq. (Argued) Jay Carlson, Esq. Preston Gates & Ellis 701 Fifth Avenue Suite 5000 Seattle, WA 98104-7078

James C. Dalton, Esq. Christopher H. Schubert, Esq. Riley Riper Hollin & Colagreco, P.C. 240 Daylesford Plaza P.O. Box 568 Paoli, PA 19301-0568 Counsel for Appellant

Andrew D. H. Rau, Esq. (Argued) Gawthrop, Greenwood & Halsted A Professional Corporation 119 North High Street West Chester, PA 19381-0562

Paula Tripodi Kaczynski, Esq. Holsten & Associates One Olive Street Media, PA 19063-3301 Counsel for Appellee

Before: Sloviter, McKEE, and Rosenn, Circuit Judges.

The opinion of the court was delivered by: Rosenn, Circuit Judge

PRECEDENTIAL

Argued: December 19, 2002

OPINION OF THE COURT

This case raises several important questions concerning the burgeoning wireless telecommunications industry and the interpretation and application of the Telecommunications Act, 47 U.S.C. S 151 et seq. (TCA). Omnipoint is a wireless telecommunications provider that claims that there is a gap in the wireless telecommunications services available to remote users in Easttown Township, Pennsylvania. Omnipoint sued the Zoning Hearing Board (ZHB or Zoning Board) in the United States District Court for the Eastern District of Pennsylvania, claiming that the ZHB violated the prohibition and anti-discrimination provisions of the TCA by denying Omnipoint's request for a variance to locate a telecommunications tower in a residential district. See 47 U.S.C. S 332(c)(7)(B)(i). Furthermore, Omnipoint alleges that the ordinance under which its variance application was denied violates Pennsylvania law because it is either de jure or de facto exclusionary and fails to provide a "fair share" of Township land for telecommunications uses.

The District Court initially issued a writ of mandamus ordering the ZHB to grant a variance because the Court held that the ZHB decision relied exclusively on aesthetic concerns in its denial and not on substantial evidence supporting rejection. 72 F. Supp.2d 512 (E.D. Pa. 1999). We vacated this writ and remanded the case to the District Court for reconsideration in light of APT Pittsburgh Ltd. v. Penn Township, 196 F.3d 469 (3d Cir. 1999). See Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Bd. of Easttown Township, 248 F.3d 101 (3d Cir. 2001) (Omnipoint I). On remand, Magistrate Judge Hart (MJ) denied Omnipoint's claims because he concluded that Omnipoint had failed to establish a "significant gap" or unreasonable discrimination under the TCA, or unconstitutional exclusion under Pennsylvania law. We affirm in part, vacate in part, and remand to the Magistrate Judge for further proceedings.

I.

Omnipoint is a licensed provider of wireless digital telephone communications services. As such, it uses a low power radio signal that is transmitted between a portable telephone and an Omnipoint antenna. The antenna then feeds the radio signal to an electronic device that is located nearby. In turn, that device connects the signal to an ordinary telephone line and routes it anywhere in the world. The combination of antenna and equipment is known as a cell site. Because of the low radio signal used by Omnipoint, the range of the cell site is quite small. For example, in Easttown Township, the maximum coverage of a cell site is two miles. When a wireless communication facility (WCF) is not available to cover a specific geographic ...


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