The opinion of the court was delivered by: Dalzell, District Judge.
This is another action under the Telecommunications Act of
1996, 47 U.S.C. § 151 et seq. (hereinafter "TCA"), prompted by
the explosive growth of cell phone demand and its attendant need
for the telecommunications towers that dot the landscape.
Currently before us are the parties' cross-motions for summary
judgment. For the reasons that follow, we will grant defendant's
motion and deny plaintiff's motion.
On April 28, 1998, the Board of Supervisors of defendant
Warrington Township ("Warrington") enacted Ordinance No. 980-10.
Section I(5)(d)(u) of the Ordinance provides that:
The Applicant [proposing to construct a new
communications tower] shall demonstrate that it is
utilizing "stealth" technology to the greatest extent
possible in the design of a Communications Tower.
In July of 1998, plaintiff Omnipoint Communications
Enterprises, L.P. ("Omnipoint") applied to Warrington's Board of
Supervisors for authorization to construct a
one-hundred-and-fifty-foot monopole communications tower on
property located at 305 Lower State Road in Warrington
Township.*fn1 The Board held hearings on Omnipoint's application
on September 8, 1998, October 13, 1998, and October 27, 1998,
and, on November 25, 1998, approved Omnipoint's application and
attached seven conditions to it, one of them being that the tower
"be designed utilizing stealth technology to look like a tree"
(hereinafter the "tree condition"). See Compl. Exh. B. Four
weeks later, Omnipoint filed this action, arguing that
Warrington's imposition of the tree condition violated the TCA,
42 U.S.C. § 1983, and Pennsylvania law. Both parties have moved
for summary judgment.*fn2
The TCA became law on February 8, 1996. Its purpose is to
"reduce regulation and encourage the rapid deployment of new
telecommunications technologies." Reno v. ACLU, 521 U.S. 844,
117 S.Ct. 2329, 2337-38, 138 L.Ed.2d 874 (1997) (internal
quotation omitted). Local zoning authorities, however, retain
much of their power under the TCA. 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
A. The Tree Condition Does Not Prohibit the Provision of
Personal Wireless Services
Omnipoint asserts that, even though Warrington granted its
conditional use application, the tree condition so increased the
cost of the communications tower that it had the effect of
prohibiting Omnipoint's provision of wireless communication
services in Warrington Township, in violation of
47 U.S.C. § 332(c)(7)(B)(i)(II). We disagree.
We first note that a number of courts have held that this
provision of the TCA applies only to blanket prohibitions or
general bans or policies, not to individual zoning decisions.
See, e.g., AT & T Wireless PCS, Inc. v. City Council of Virginia
Beach, 155 F.3d 423, 428 (4th Cir. 1998) (holding that "any
reading of subsection (B)(i)(II) that allows the subsection to
apply to individual decisions would effectively nullify local
authority by mandating approval of all (or nearly all)
applications, a result contrary to the explicit language of
section (B)(iii), which manifestly contemplates the ability of
local authorities to `deny a request'"); Omnipoint Comms., Inc.
v. City of Scranton, 36 F. Supp.2d 222, 232 (M.D.Pa. 1999) ("It
is well-settled . . . that a single decision by a local
regulatory agency is insufficient to demonstrate a prohibition on
personal wireless communication services. The courts have
uniformly held that § 32(c)(7)(B)(i)(II) is violated only
where the local regulatory agency creates a general ...