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United States District Court, Middle District of Pennsylvania

March 31, 1999


The opinion of the court was delivered by: Vanaskie, District Judge.


Plaintiff Omnipoint Communications, Inc. (Omnipoint) filed this action under 42 U.S.C. § 1983 and the Telecommunication Act of 1996, 47 U.S.C. § 332(c)(7), contending that the defendant Penn Forest Township (Penn Forest) improperly denied Omnipoint's request to place a 150 foot monopole on a 1.49 acre lot in a C-1 zoned area. (Dkt. Entry 1.) In its complaint, Omnipoint sought mandamus relief in addition to monetary damages. On February 13, 1998, Penn Forest moved to dismiss the complaint, contending, inter alia, that Omnipoint had failed to alleged sufficient facts to support a claim for mandamus relief and that a § 1983 claim for monetary damages cannot be based upon a violation of the Telecommunications Act. (Dkt. Entry 12.) On March 16, 1998, Omnipoint moved for summary judgment and for the issuance of peremptory judgment of mandamus. (Dkt. Entry 16.)

Because the denial of Omnipoint's request to erect its 150 foot monopole was not supported by substantial evidence, Omnipoint's motion for summary judgment will be granted and a peremptory judgment of mandamus will be entered against Penn Forest. Because Congress has provided a comprehensive mechanism for judicial review for alleged violations of the Telecommunications Act, thereby implicitly foreclosing a § 1983 action, Penn Forest's motion to dismiss the § 1983 claim will be granted.


In enacting the Telecommunications Act of 1996, Congress extended federal court jurisdiction to local zoning decisions affecting the placement of communications antennae needed to create a seamless system for the transmission of wireless communications. To understand why Congress made the federal courts the fora for adjudication of zoning disputes, a brief narration of the manner in which personal wireless communications systems operate is instructive:

    [Personal Communication Services] and wide area
  [specialized mobile radio services] operate by
  transmitting low power radio signals between
  mobile, wireless units and fixed antennae mounted
  on towers, buildings, or other structures. Signals
  generated by mobile transmitters are fed to
  electronic cabinets at the base of the antennae,
  where they are connected to telephone lines, over
  which the transmission is routed to ordinary
  telephone equipment located anywhere in the world.
  A single antenna and its related equipment cabinet
  are called a "cell site."

    The distance over which the low-power signals
  emitted by mobile transmitters may be effectively
  broadcast to fixed, cell site antennae is limited
  to a relatively small geographic area, called a
  "cell." Accordingly, an overlapping,
  interconnected quilt of cells must be stitched
  together to provide seamless coverage. Where there
  is a "gap" in the pattern, the user's call is
  "dropped" or "disconnected."

Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457, 1460 (N.D.Ala. 1997).

On January 28, 1997, Omnipoint made an application to build a 150 foot monopole tower on a 1.49 acre lot in the Penn Forest Streams Development in connection with Omnipoint's efforts to develop a personal wireless telecommunications system in Northeastern Pennsylvania. (Def's SMF (Dkt. Entry 17) ¶ 8.) The proposed property was zoned as a C-1 district. On February 7, 1997, Roseann Cochrane, a Penn Forest Zoning Officer, denied the application on the ground that a communications tower was not a permitted use in a C-1 zone and instructed Omnipoint that a use and height variance was required. (Pl's SMF (Dkt. Entry 17) ¶ 10.) Omnipoint then filed a request for a variance with the Penn Forest Hearing Board. (Id. ¶ 11.)

On April 3, 1997, a public hearing was conducted. Omnipoint participated in the hearing without legal counsel. The Hearing Board denied the request for a use variance. (Pl's Exs. (Dkt. Entry 18) Ex. A.) Observing that § 5.300 of the Ordinance required a minimum lot size of 2 acres in a C-1 district, (id. ¶ 4), the Hearing Board concluded that Omnipoint needed a use variance before it would be permitted to build its monopole.*fn2 After setting forth the heavy burden necessary for a variance, the Hearing Board simply stated that Omnipoint had failed to meet its burden in that "the physical characteristics of the property could be used for a permitted purpose in a C-1 zoned district." (Id. ¶ 6.)*fn3

Omnipoint did not appeal this decision. Instead, on May 28, 1997, Omnipoint made a second zoning permit application. (Pl's Exs. (Dkt. Entry 18) Ex. C.) Omnipoint, now represented by counsel, contended that the Board had erred in applying the 2-acre size requirement because the proposed 1.49 acre lot was a nonconforming lot, i.e., it had been subdivided prior to the imposition of the two acre minimum. Omnipoint argued that the 2-acre restriction was not applicable to the nonconforming lot.*fn4 In addition to the argument that its proposed monopole was a permitted use in a C-1 district, Omnipoint also argued that, as a nonconforming lot, no height requirement could be imposed. (Id.)*fn5 Omnipoint's application was again denied. (Def's SMF (Dkt. Entry 17) ¶ 16.)

Omnipoint appealed this determination to the Zoning Hearing Board, repeating its arguments that (1) its proposed monopole was a permitted use in a C-1 district; (2) no height restriction could be imposed; and (3) no acreage restriction could be applied to a nonconforming lot. On August 8, 1997, a hearing was held before the Zoning Hearing Board. (Def's Exs. (Dkt. Entry 18) Ex. F.) On September 16, 1997, the Zoning Hearing Board denied Omnipoint's appeal and application, finding:

    The location of the proposed tower immediately
  adjacent to a major highway through the Township
  and surrounded by a residential development, Penn
  Forest Streams, leaves questions as to the safety
  of users of the highway and residents in the
  Development of Penn Forest Streams. The severity
  of the winters in the Pocono area are notorious,
  both in the quantity of snow and the intensity of
  winds and ice.

    Section 4.300 of the Penn Forest Township Zoning
  Ordinance provides:


    Fourteen "Use Classes" are hereby established as
    shown in Schedule I. The specific uses included
    in each Use Class are outlined below and none of
    these uses shall be permitted in any district if
    they are to be operated in such a manner as to
    create any dangerous, injurious, noxious, or
    otherwise objectionable fire, explosive,
    radioactivity, or other hazard; noise or
    vibration, smoke, dust, dirt, or other forms of
    air pollution, electrical glare or other
    disturbance, as identified in Article V, which
    will adversely affect the surrounding area or

    Even if the erection of the tower is under the
  strict intent of the Ordinance permissible, it
  creates a danger and a hazard and would adversely
  affect the surrounding area.

    The adjoining property owners, residents of Penn
  Forest Streams, objected to the location of the
  tower and stated their reasons and concerns.

    The Telecommunications Act is not being violated
  by this decision. The decision is primarily based
  on safety of towers and their danger to the
  surrounding areas. The contention that the Township
  Zoning Hearing Board discriminated against it,
  because the Zoning Hearing Board permitted a
  similar tower to be erected in a C-1 district in
  the Township is unfounded. The Act

  prohibits unreasonable discrimination, and was
  intended to encourage free competition by
  preventing a municipality from favoring certain
  providers. This is not the case. The very location
  of the Cellular One tower is in a rural sparsely
  populated area is the sole reason for the granting
  of Cellular One's application.

(Def's Exs. (Dkt. Entry 18) Ex. D, at 4-5 (emphasis added).)

The Board did not dispute Omnipoint's contention that its proposed monopole was a permitted use in a C-1 district and that a nonconforming lot was not subject to the acreage and height limitations. Instead, it rested its determination upon safety concerns. Omnipoint challenges this determination as not being supported by substantial evidence; as unreasonably discriminating against it in view of the Board's decision to allow Pennsylvania Cellular Telephone Corp. to erect a tower in a C-1 district; and as having the effect of denying personal wireless services.


  A.  Omnipoint's Motion for Summary Judgment on the
      Telecommunications Act Claim

Essentially, the Telecommunications Act of 1996 authorizes a federal court to hear appeals from zoning board decisions. The record for review of the zoning ruling is compiled by the zoning board. It is therefore appropriate to adjudicate such an appeal on a summary judgment motion, with the administrative record providing the undisputed factual basis for the federal court's decision. This is particularly the case where, as here, there is a contention that the zoning board's decision is not supported by substantial evidence. Such a question generally must be decided on the basis of the information presented to the zoning board. In this case, Penn Forest has not contested the accuracy of the information presented in support of Omnipoint's motion. Accordingly, adjudication of all Telecommunications Act issues on Omnipoint's summary judgment motion is proper.

The Telecommunications Act of 1996 was designed to promote competition in the personal telecommunications industry by limiting the ability of local authorities to regulate and/or control the expansion of telecommunications technology. See Gearon & Co. v. Fulton County, 5 F. Supp.2d 1351, 1353 (N.D.Ga. 1998); Cellco Partnership v. Town Plan & Zoning Comm'n, 3 F. Supp.2d 178, 181 (D.Conn. 1998) ("Congress passed the Telecommunications Act in an effort to increase competition in the telecommunications industry by placing limits on local zoning boards' regulation of the placement, construction, and modification of personal wireless service facilities."); Smart SMR of N.Y., Inc. v. Zoning Comm'n of the Town of Stratford, 995 F. Supp. 52, 56 (D.Conn. 1998) ("Congress passed the Act in order to increase competition in the telecommunications industry."); Sprint Spectrum L.P. v. Town of Farmington, No. 97-863, 1997 WL 631104, at *2 (D.Conn. Oct. 6, 1997) (finding that Congress intended to limit local authority in favor of new telecommunication technology); Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457, 1461 (N.D.Ala. 1997) (noting that the Act was intended to open market and promote competition). Although the Telecommunications Act placed certain restrictions upon local regulatory bodies, it did not completely preempt their ability to control zoning decisions in relation to telecommunications services. See Town of Farmington, 1997 WL 631104, at *2. Instead, Congress sought to balance the interests in promoting wireless technology with the rights of the local zoning authorities to maintain the integrity of land use rules. See 47 U.S.C. § 332(c)(7)(A) ("Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities."); H.R. Conf. Rep. No. 104-458, 104th Cong., 2d Sess. 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 222 ("The conference agreement creates a new section 704 which prevents Commission preemption of local and State land use decisions and preserves the authority of State and local governments over zoning and land use matters except in the limited circumstances set forth in the conference agreement."). This balancing of interests was accomplished by imposing a few procedural requirements and two substantive limitations on local zoning authorities. To assure that the federally-imposed requirements and limitations were followed, Congress authorized federal court review of local zoning decisions impacting the provision of wireless communication services. 47 U.S.C. § 332(c)(7)(B)(v).

There are essentially two procedural safeguards contained in the Telecommunications Act. First, it requires that any adverse decision against a personal wireless services provider be in writing. 47 U.S.C. § 332(c)(7)(B)(iii); Gearon & Co., 5 F. Supp.2d at 1354; AT & T Wireless Servs. of Fla. v. Orange County, 982 F. Supp. 856, 859 (M.D.Fla. 1997); see also PrimeCo Personal Communications, L.P. v. Village of Fox Lake, 26 F. Supp.2d 1052, 1062 (N.D.Ill. 1998) (finding that written decision need not be extensive and must only inform an applicant of the decision). Second, the decision must be supported by "substantial evidence." 47 U.S.C. § 332(c)(7)(B)(iii).

There are also two substantive provisions within the Telecommunications Act which protect personal wireless services providers and limit the authority of local zoning authorities. First, State or local government agencies "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). Second, State or local government agencies "shall not unreasonably discriminate among providers of functionally equivalent services." 47 U.S.C. § 332(c)(7)(B)(i)(I).

In this case, Omnipoint contends that Penn Forest violated both the procedural safeguards as well as the substantive provisions of the Telecommunications Act. First, Omnipoint contends that the decision denying Omnipoint's request for a variance lacked substantial evidence. Second, Omnipoint argues that Penn Forest's refusal to grant a variance effectively prohibited the provision of personal wireless services. Finally, Omnipoint asserts that Penn Forest's denial of the variance constituted unreasonable discrimination between providers of functionally equivalent services. Because I find that Penn Forest's decision was not supported by substantial evidence, Omnipoint's arguments concerning alleged violations of the substantive safeguards need not be addressed.*fn6

The substantial evidence standard is the traditional standard of review applied to agency determinations:

  [S]ubstantial evidence has been defined as "such
  relevant evidence as a reasonable mind might
  accept as adequate to support a conclusion." Under
  this definition, a court may not displace an
  agency's "choice between two fairly conflicting
  views, even though the court would justifiably
  have made a different choice had the matter been
  before it de novo." Likewise, in the context of
  the [Telecommunications Act of 1996], the court
  must affirm a board's decision "even if the court
  would decide the matter differently."

Cellular Tele. Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 24 F. Supp.2d 359, 365-66 (D.N.J. 1998) (citations omitted); see also PrimeCo Personal Communications, 26 F. Supp.2d at 1063 ("`Substantial evidence is more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'") (quoting Geske & Sons, Inc. v. NLRB, 103 F.3d 1366, 1374-75 (7th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 46, 139 L.Ed.2d 13 (1997)). The local zoning authority bears the burden of demonstrating that substantial evidence existed to support its denial. Cellco Partnership, 3 F. Supp.2d at 182.

To enable meaningful judicial review, a written decision cannot simply rely upon conclusory statements, but must provide some evidentiary basis to support each statement. See Virginia Metronet, Inc. v. Board of Supervisors of James City County, 984 F. Supp. 966, 973 (E.D.Va. 1998). Moreover, the "generalized concerns" voiced by opponents will not provide substantial evidence for an adverse decision against a personal wireless services provider. See PrimeCo Personal Communications, 26 F. Supp.2d at 1063 ("Under this standard, unsupported constituent testimony opposing cellular tower locations generally will not satisfy the substantial evidence test."); Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Township, 20 F. Supp.2d 875, 880 (E.D.Pa. 1998) ("Generalized concerns and conclusive statements within the record about the aesthetic and visual impacts on the neighborhood do not amount to substantial evidence."); Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 745 (C.D.Ill. 1997) ("But under substantial evidence review, the mere existence of opposition is insufficient to support an agency decision against a request. Instead, the agency must rely upon more than a scintilla of evidence that a decision against the request is warranted under the agency's criteria."); Western PCS II Corp. v. Extraterritorial Zoning Auth. of the City and County of Sante Fe, 957 F. Supp. 1230, 1236 (D.N.M. 1997) (finding that "generalized concerns" of five neighbors failed to constitute substantial evidence for denial of requested application); BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923, 928 (N.D.Ga. 1996) (holding that generalized concerns do not amount to substantial evidence). But see AT & T Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F.3d 423, 430-31 (4th Cir. 1998) (suggesting that public outrage standing alone can constitute substantial evidence to deny a zoning request).

At the hearing conducted on its initial request for a variance, Omnipoint presented testimony of Michael Oser, who had been employed to develop and set up the digital communications grid. Mr. Oser testified that the monopole was designed to meet all applicable building codes. (Pl's Exs. (Dkt. Entry 18) Ex. E, Tr. 4/3/97 hearing, at 23-24.) Mr. Oser testified that the monopoles were designed to withstand winds of 80 mph with 1/2 inch of ice loading. (Id. at 10.)*fn7 He noted that after Hurricanes Andrew and Hugo, monopoles remained in place. (Id. at 11.) In terms of lightening concerns, Mr. Oser testified that the monopole was grounded, would not attract lightening, and that, even if struck by lightening, would withstand such a strike. (Id. at 36.) Finally, Mr. Oser testified that the monopole would be structurally sound. (Id.)

Several members of the adjacent residential development expressed concern over the safety of the tower. Clark Wooding stated:

  I'm more concerned when [the ice] start to melt
  and we have high gales like we've had recently,
  what's going to happen to this ice if it's not
  contained to that property. It's going to blow
  over into the development where there's building
  lots for homes where traffic comes down the road
  and where children play. Now what's going to be
  done to protect those properties and the
  automobiles and the children if this tower is

(Id. at 50.) Another resident of the development, Grace Martin, expressed her fear that the monopole could topple from severe weather and injure individuals in the development. (Id. at 51-52.)

All of this testimony concerning the safety of the monopole occurred at the April 4, 1997 hearing. After the April hearing, the Zoning Hearing Board denied the request for a variance on the ground that Omnipoint had failed to meet its burden of demonstrating that the property had no other economic uses. (Pl's Exs. (Dkt. Entry 18) Ex. A.) Omnipoint reapplied for permission to erect the monopole, contending that an error had been committed in determining that the monopole was not a permitted use in a C-1 district. This application was denied and a second hearing was conducted. At the August 8, 1997 hearing, there was little discussion concerning the safety of the proposed monopole by Omnipoint or members of the Board.*fn8 Two residents of the adjacent development, however, rose to challenge the safety of the monopole. John Rodia testified that he was concerned that ice could gather on the monopole to the extent that it would collapse onto the highway. (Pl's Exs. (Dkt. Entry 18) Tr. 8/8/97 hearing, at 61.) Grace Martin again expressed her opposition:

  And I don't need to see this tower staring me in
  the face every morning, and God forbid with the
  bad weather we have here and it falls in the
  middle of the street or my kids have to worry
  about something falling on them. I don't need to
  worry about that. If he wants it, make him put it
  on his property where he lives or somewhere else.

(Id. at 63.) The Board denied Omnipoint's application precisely because it found that the monopole presented a safety risk to the surrounding community. (Pl's Exs. (Dkt. Entry 18) Ex. D.)

  The Board's written decision did not cite to any competent
evidence to support its determination that the proposed
monopole created a danger to the community. Omnipoint presented
evidence that the monopole would withstand winds of 80 mph
while coated with 1/2 inch of ice. Omnipoint also represented
that the monopole would be constructed according to applicable
codes and regulations. The questions concerning

the safety of the monopole could best be described as
"generalized concerns" of residents of the adjacent
development. These concerns were not substantiated. No evidence
was presented of the likelihood of a monopole falling over.
Such unsubstantiated "generalized concerns" do not constitute
substantial evidence under the Telecommunications Act. As noted
in Iowa Wireless Services, L.P. v. City of Moline, 29 F. Supp.2d 915
 (C.D.Ill. 1998):

    [T]here is no evidence supporting the general
  concerns expressed by a few citizens that the
  proposed tower posed a threat to the public
  because it might collapse. While one citizen
  provided evidence that a tower had fallen when it
  was hit by a tornado, IW provides evidence that
  the tower was an old design and that an IW tower
  in the vicinity of the tornado did not collapse.
  Furthermore, IW provided evidence that the
  proposed tower would be constructed to FCC
  specifications and that it would be designed to
  collapse on itself, not topple as earlier designs
  could. A layperson's testimony that a tower might
  fall is simply not probative evidence, given the
  evidence IW presented to the contrary.

Id. at 921 (emphasis added).

Penn Forest bore the burden of demonstrating that substantial evidence existed for its determination that the monopole presented a safety risk. Penn Forest has failed to meet that burden. Therefore, Omnipoint's motion for summary judgment will be granted and a peremptory judgment of mandamus will be issued against Penn Forest.*fn9

B.  Penn Forest's Motion to Dismiss the Civil Rights Claims

1. Standard

In deciding a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must draw all reasonable inferences from the facts pled in the complaint and construe them in the light most favorable to the claimant. Unger v. National Residents Matching Program, 928 F.2d 1392, 1400 (3d Cir. 1991); Truhe v. Rupell, 641 F. Supp. 57 (M.D.Pa. 1985). The court, however, need not accept as true "conclusory allegations of law, unsupported conclusions and unwarranted inferences." Pennsylvania House, Inc. v. Barrett, 760 F. Supp. 439, 449-50 (M.D.Pa. 1991). Thus, a Rule 12(b)(6) motion does not serve to question a plaintiff's well-pled facts, but rather tests the legal foundation of the plaintiff's claims. United States v. Marisol, Inc., 725 F. Supp. 833, 836 (M.D.Pa. 1989). The Rule 12(b)(6) movant carries the burden of showing the legal insufficiency of the claims asserted. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). A Rule 12(b)(6) motion will be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Pennsylvania House, 760 F. Supp. at 449-50.

  2.  Whether the Telecommunications Act Confers a Federal
      Right Enforceable under 42 U.S.C. § 1983*fn10

Recently, the United States Supreme Court reiterated the factors to be considered in determining whether a federal statute confers a right enforceable under § 1983:

  In order to seek redress through § 1983, . . . a
  plaintiff must assert the violation of a federal
  right, not merely a violation of federal law. We
  have traditionally looked at three factors when
  determining whether a particular statutory
  provision gives rise to a federal right. First,
  Congress must have intended that the provision in
  question benefit the plaintiff. Second, the
  plaintiff must demonstrate that the right
  assertedly protected by the statute is not so
  "vague and amorphous" that its enforcement would
  strain judicial competence. Third, the statute must
  unambiguously impose a binding obligation on the
  States. In other words, the provision giving rise
  to the asserted right must be couched in mandatory
  rather than precatory terms.

    Even if a plaintiff demonstrates that a federal
  statute creates an individual right, there is only
  a rebuttable presumption that the right is
  enforceable under § 1983. Because our inquiry
  focuses on congressional intent, dismissal is
  proper if Congress "specifically foreclosed a
  remedy under § 1983." Congress may do so expressly,
  forbidding recourse to § 1983 in the statute
  itself, or impliedly, by creating a comprehensive
  enforcement scheme that is incompatible with
  individual enforcement under § 1983.

Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (citations omitted).

It is clear that the Telecommunications Act was intended to benefit wireless service providers such as Omnipoint. See Omnipoint Communications Enters., L.P. v. Zoning Hearing Bd. of Chadds Ford Township, No. 98-3299, 1998 WL 764762, at *5 (E.D.Pa. Oct. 28, 1998) ("Because Omnipoint is the type of plaintiff that the Act intended to benefit, requirement one is satisfied."); National Telecommunication Advisors, Inc. v. City of Chicopee, 16 F. Supp.2d 117, 120 (D.Mass. 1998). Moreover, the Telecommunications Act specifically provides for review of local regulatory bodies "in any court of competent jurisdiction." 47 U.S.C. § 332(c)(7)(B)(v). Given that federal courts were provided this jurisdiction, "[o]bviously, the assumption by Congress in enacting the statute was emphatically not that the plaintiff's interest is `beyond the competence of the judiciary to enforce.'" National Telecommunication Advisors, Inc., 16 F. Supp.2d at 120; see also Chadds Ford Township, 1998 WL 764762, at *5 ("By giving courts this power to review, Congress clearly believed that the interests protected by the TCA were not `so vague and amorphous' that their enforcement would be beyond judicial competence."). As to the final factor, it is apparent that the Telecommunications Act places mandatory requirements upon local regulatory boards, i.e., a written decision supported by substantial evidence, no blanket prohibition against personal wireless services, and no unreasonable discrimination against functionally equivalent providers. See Chadds Ford Township, 1998 WL 764762, at * 6 ("Finally, the plain language of the Act is couched in mandatory terms. It requires that the state and local authorities shall not prohibit the provision of wireless services and further requires the decisions of such authorities to be in writing and supported by substantial evidence. Hence, the third requirement is also satisfied."); National Telecommunication Advisors, Inc., 16 F. Supp.2d at 120 (same).*fn11

Congress has not expressly foreclosed a § 1983 action based upon a violation of the Telecommunications Act. See, e.g., Chadds Ford Township, 1998 WL 764762, at *7 ("Nothing in the language of the Act itself expressly precludes an action under section 1983, therefore, the relevant question is whether Congress impliedly foreclosed such action."). Thus, the question arises as to whether the Telecommunications Act creates a "comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983." Blessing, 520 U.S. at 341, 117 S.Ct. 1353.

Most of the courts that have considered this question have determined the Telecommunications Act failed to provide for an enforcement scheme so comprehensive as to foreclose a § 1983 action. See Chadds Ford Township, 1998 WL 764762, at *7 ("[T]his Court does not find that the remedial scheme of the Telecommunications Act of 1996 is sufficiently comprehensive to imply that Congress intended to foreclose a remedy under section 1983."); Smart SMR of N.Y., Inc. v. Zoning Comm'n of the Town of Stratford, 995 F. Supp. 52, 61 (D.Conn. 1998) ("[T]he Act does not implicitly or explicitly foreclose section 1983 actions, nor [does] the Act provide a comprehensive enforcement scheme which would preclude a section 1983 claim."); Sprint Spectrum L.P. v. Town of Easton, 982 F. Supp. 47, 53 (D.Mass. 1997) ("More particularly, the TCA does not provide a comprehensive enforcement scheme intended to supplant a § 1983 remedy."); see also MCI Telecommunications Corp. v. Southern New England Tele. Co., 27 F. Supp.2d 326, 333-34 (D.Conn. 1998) (finding that a violation of the Telecommunications Act could form the basis of a § 1983 claim); APT Minneapolis, Inc. v. City of Maplewood, No. 97-2082, 1998 WL 634224, at *7 (D.Minn. Aug. 12, 1998) (same); Cellco Partnership v. Town Plan & Zoning Comm'n of the Town of Farmington, 3 F. Supp.2d 178, 186 (D.Conn. 1998) (same).

On only two occasions has the United States Supreme Court "found a remedial scheme sufficiently comprehensive to supplant § 1983." Blessing, 520 U.S. at 347, 117 S.Ct. 1353 (citing Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981)). In Smith v. Robinson, the Court determined that the Education of the Handicapped Act established:

  an elaborate procedural mechanism to protect the
  rights of handicapped children. The procedures not
  only ensure that hearings conducted by the State
  are fair and adequate. They also effect Congress'
  intent that each child's individual educational
  needs be worked out through a process that begins
  on the local level and includes ongoing parental
  safeguards, and a right to judicial review.

Id. at 1010-11, 104 S.Ct. 3457. Given the comprehensive nature of the "procedures and guarantees" set forth in the Education of Handicapped Act, the Court determined that Congress did not intend for § 1983 to be used to enforce that act. Id. at 1012, 104 S.Ct. 3457 ("Allowing a plaintiff to circumvent the EHA administrative remedies would be inconsistent with Congress' carefully tailored scheme.").*fn12

In Sea Clammers, the plaintiffs attempted to assert a § 1983 claim based upon a violation of the Federal Water Pollution Control Act. The Court found that the Act contained "unusually elaborate enforcement provisions, conferring authority to sue for this purpose both on government officials and private citizens." Sea Clammers, 453 U.S. at 13, 101 S.Ct. 2615. First, it provided that the Environmental Protection Agency could respond to violations of the Act by seeking compliance orders and civil suits. Id. Moreover, it provided that any "interested party" could seek judicial review in the courts of appeals for action taken by the Environmental Protection Agency. Id. at 13-14, 101 S.Ct. 2615. The Act also provided "citizen-suit provisions" which allowed a private citizen to sue for injunctive relief. Id. at 14, 101 S.Ct. 2615. Because of the elaborate enforcement provision, the Court determined that Congress did not intend to allow citizens to seek enforcement of the Act through a § 1983 action. Id. at 21, 101 S.Ct. 2615 ("We therefore conclude that the existence of these express remedies demonstrates not only that Congress intended to foreclose implied private actions but also that it intended to supplant any remedy that otherwise would be available under § 1983.").*fn13

Thus, the existence of private judicial remedies is significant in making a determination as to the comprehensive nature of a remedial scheme. In Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987), the United States Supreme Court determined that tenants could maintain a § 1983 action for violations of the Housing Act. In pertinent part, the Court stated:

    In both Sea Clammers and Smith v. Robinson,
  the statutes at issue themselves provided for
  private judicial remedies, thereby evidencing
  congressional intent to supplant the § 1983 remedy.
  There is nothing of that kind found in the Brooke
  Amendment or elsewhere in the Housing Act. Indeed,
  the only private remedy provided for is the local
  grievance procedures which the Act now requires.

Id. at 427, 107 S.Ct. 766; see also Farley v. Philadelphia Hous. Auth., 102 F.3d 697, 703 (3d Cir. 1996) ("The Supreme Court has held that in enacting the U.S. Housing Act, Congress did not specifically foreclose a § 1983 remedy by enactment of a comprehensive scheme of remedial mechanisms.").

Thus, the application of Smith and Sea Clammers to this case turns upon whether Congress provided for private judicial remedies within the Telecommunications Act. Congress clearly did so. After considering Smith, Sea Clammers and Blessing, one court recently stated:

    Although the path is by no means free from
  brambles, these authorities do mark a passage to
  only one conclusion: a § 1983 action is not
  available to obtain a remedy for violation of the
  TCA for the following reasons

    First, the statute provides a clear, detailed
  process that allows quick and complete remedies
  for individuals improperly denied permission to
  erect a personal wireless communications tower.
  Given this carefully drafted provision, and the
  absence of any indicia of contrary legislative
  intent, it is manifest that Congress provided
  precisely the

  remedies it considered appropriate when drafting
  the TCA. Given that litigation under the TCA will
  inevitably be directed, from time to time, at
  relatively unsophisticated, small or remote
  townships, the absence of any provision for fees
  in the TCA is telling.

    Second, this case bears a strong resemblance to
  Smith and Sea Clammers. In both cases, the statute
  at issue expressly allowed judicial review of
  either the decision made at the hearing, or of the
  Administrator's actions. Here, a private cause of
  action and expedited judicial review is mandatory.

    [T]he comprehensiveness of the TCA's remedial
  scheme is perhaps best evidenced by the fact that
  the § 1983 statutory apparatus adds nothing to
  plaintiff's remedial armament under the TCA —
  except the opportunity to seek attorney's fees
  under § 1988. In other words, plaintiff has tacked
  Count III onto its complaint merely for fees. While
  the desire to recoup fees is understandable, the
  use of § 1983 in such a way trivializes this
  important statute and is inconsistent with its

National Telecommunication Advisors, Inc., 16 F. Supp.2d at 122 (citations omitted).

I find this reasoning persuasive and likewise conclude that Congress has provided a comprehensive remedial mechanism for enforcement of the Telecommunications Act. Therefore, Penn Forest's motion to dismiss the § 1983 claim based upon violations of the Telecommunications Act will be granted.*fn14

In Chadds Ford Township, the court disagreed with the rationale advanced in National Advisors for two reasons. First, the court believed that National Advisors' reliance upon the expedited judicial review provision in the Telecommunications Act was misplaced because such logic would render any statutory scheme that provided for federal judicial review sufficiently comprehensive to foreclose a § 1983 action. Chadds Ford Township, 1998 WL 764762, at *9 ("Taken to its limit, the district court's reading of Blessing . . . suggests that any statutory remedial scheme that provides a mechanism for judicial relief would render the scheme sufficiently comprehensive to infer Congressional intent to foreclose reliance on § 1983."). Given Smith, Sea Clammers, Wright and Blessing, I must respectfully disagree. Judicial review was precisely the remedial factor emphasized in Smith, Sea Clammers, Wright and Blessing.

Moreover, it is difficult to envision a judicial mechanism more comprehensive than that established by Congress in the Telecommunications Act — direct and expedited federal judicial review without any need to exhaust state remedies.*fn15 Although the Telecommunications Act may not provide "elaborate" procedural trappings, the simplicity of its remedial scheme does not preclude a determination that it is comprehensive. Congress provided the ultimate remedial measure: expedited federal judicial review.*fn16

Second, the court in Chadds Ford Township contended that Johnson v. Orr, 780 F.2d 386 (3d Cir. 1986), required recognition of a § 1983 claim here. Chadds Ford Township, 1998 WL 764762, at *10. After carefully reviewing Orr, I find that Orr actually supports the conclusion that the Telecommunications Act forecloses a § 1983 claim. In Orr, the Third Circuit found that the 1968 National Guard Technicians Act, which only provided internal administrative remedial procedures without an explicit judicial review mechanism, failed to rise to the level of the statutes at issue in Sea Clammers and Smith.*fn17 In this regard, the only manner in which a party could obtain judicial review of a claimed violation of the 1968 National Guard Technicians Act was to request review of the final administrative determination pursuant to the Administrative Procedure Act. In sharp contrast, the Telecommunications Act explicitly provides for expedited judicial review in federal court without exhaustion of state or administrative remedies. Thus, I find the court's reliance upon Orr in Chadds Ford Township to be misplaced.

In short, Congress has provided personal wireless service providers with a comprehensive federal judicial review mechanism. By providing such expedited judicial review, Congress implicitly foreclosed the use of § 1983 to enforce the Telecommunications Act. Therefore, Penn Forest's motion to dismiss the § 1983 claim based upon violations of the Telecommunications Act will be granted.

3. Other Claims under § 1983

Omnipoint has also alleged that Penn Forest's conduct was arbitrary and capricious and resulted in a denial of due process. Generally, "[s]ection 1983 is not a means for litigating in a federal forum whether a state or local administrative decision was arbitrary and capricious." See Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 888 (2d Cir. 1987); Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832 n. 9 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982); Macombs Pharmacy, Inc. v. Wing, No. 97-5550, 1998 WL 696008, at *2 (S.D.N.Y. Oct. 6, 1998). To this extent, Omnipoint cannot maintain a procedural due process claim as the Third Circuit has determined that Pennsylvania's scheme for challenging zoning determinations satisfied procedural due process. See Rogin v. Bensalem Township, 616 F.2d 680, 695 (3d Cir. 1980) ("In Pennsylvania the procedure for challenging zoning ordinances substantially conforms with the general due process guidelines enunciated by the Supreme Court."), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981); see also Midnight Sessions, Ltd. v. City of Phila., 945 F.2d 667, 681 (3d Cir. 1991) ("The availability of a full judicial mechanism to challenge the administrative decision to deny an application, even an application that was wrongly denied, precluded a determination that the decision was made pursuant to a constitutionally defective procedure."), cert. denied, 503 U.S. 984, 112 S.Ct. 1668, 118 L.Ed.2d 389 (1992); Bello v. Walker, 840 F.2d 1124, 1128 (3d Cir.) (finding that developer could not maintain a § 1983 action against municipal board for the denial of building permit because the state provided "`reasonable remedies to rectify a legal error by a local administrative body.'") (quoting Cohen v. City of Phila., 736 F.2d 81, 86 (3d Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984)), cert. denied, 488 U.S. 851, 109 S.Ct. 134, 102 L.Ed.2d 107 (1988).

In terms of a substantive due process claim, Omnipoint has failed to allege that Penn Forest's decision was motivated by "bias, bad faith, improper motive, racial animus, or the existence of partisan political or personal reasons." Midnight Sessions, 945 F.2d at 683; see also DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 601, (3d Cir.) (finding that denial of zoning permit for "political or personal reasons" could support substantive due process claim under § 1983), cert. denied, 516 U.S. 937, 116 S.Ct. 352, 133 L.Ed.2d 247 (1995); Bello, 840 F.2d at 1129-30 (finding a § 1983 claim for violation of substantive due process properly pled where it was alleged that building permit was denied for "political or personal reasons unrelated to the merits of the application"); Neiderhiser v. Borough of Berwick, 840 F.2d 213, 217-18 (3d Cir.) (finding § 1983 claim for arbitrary and capricious denial of zoning variance where sole basis for denial was adult content of proposed movie rentals), cert. denied, 488 U.S. 822, 109 S.Ct. 67, 102 L.Ed.2d 44 (1988). Instead, Omnipoint has merely alleged repeatedly that Penn Forest's written decision was not supported by substantial evidence. Omnipoint does not ascribe any evil motive to Penn Forest's action or that it was motivated by reasons unrelated to the merits of Omnipoint's application; instead, Omnipoint only claims that Penn Forest erred in its final determination. As such, Omnipoint has failed to allege facts sufficient to support a § 1983 substantive due process claim.*fn18

Finally, Omnipoint attempts to use an alleged violation of the "dormant" commerce clause to support its § 1983 claim.*fn19 Omnipoint contends that Penn Forest's action "unduly burden[ed] and impede[d] its ability to provide wireless services throughout the Eastern United States particularly within Northeastern Pennsylvania." (Pl's Pop. Br. (Dkt. Entry 15) at 15.) Omnipoint argues further that "[t]he Penn Forest Zoning Ordinance simply does not accommodate the needs of this new technology and has the effect of prohibiting service within certain areas since it does not recognize wireless services as essential, allows a greater prerogative to a state regulated utility than to a federal licensee, and has allowed a similar tower to Pennsylvania Cellular in a C-1 zone." (Id. at 15-16.) As noted earlier, Omnipoint has failed to demonstrate that Penn Forest prohibited the construction and placement of personal wireless facilities; rather, Omnipoint concedes that other personal wireless providers were permitted to erect and maintain such facilities in Penn Forest.*fn20 Thus, the Penn Forest Zoning Ordinance does not prohibit personal wireless services; it merely regulates where they may be located. The Telecommunications Act does not give personal wireless service providers carte blanche authority to select the lowest cost location for its towers, but instead reserves to local zoning bodies significant authority in applying local zoning rules to the placement issue. Moreover, Omnipoint's argument that Penn Forest may not treat conventional telephone companies differently is inconsistent with the legislative history of the Telecommunications Act. See City of Scranton, 36 F. Supp.2d at 233-34. Finally, Omnipoint's contention that Penn Forest unreasonably discriminated between it and Pennsylvania Cellular is without merit. A reasonable ground existed for the alleged discrimination, namely the potential danger that Omnipoint's monopole would pose to the surrounding residents. In short, Omnipoint's commerce clause arguments are without merit.*fn21


Because Penn Forest's decision to deny Omnipoint's application was not supported by substantial evidence, Omnipoint's motion for summary judgment on Count I will be granted and a peremptory judgment of mandamus will be entered against Penn Forest. Moreover, because Omnipoint has failed to allege facts that would support a § 1983 action, Penn Forest's motion to dismiss Count II will be granted.

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