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OMNIPOINT COMMUNICATIONS v. WARRINGTON TOWNSHIP

September 21, 1999

OMNIPOINT COMMUNICATIONS ENTERPRISES, L.P.
v.
WARRINGTON TOWNSHIP.



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

MEMORANDUM

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.

I. Facts

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

II. The TCA

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) provides that:

  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.
  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 ยง 3[3]2(c)(7)(B)(i)(II) is violated only where the local regulatory agency creates a general ...


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