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:
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
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.
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)
Omnipoint argues that Warrington's imposition of the tree
condition violates the
TCA because it "ha[s] the effect of prohibiting the provision of
personal wireless services," in violation of
47 U.S.C. § 332(c)(7)(B)(i)(II), and "unreasonably discriminate[s] among
providers of functionally equivalent services," in violation of
47 U.S.C. § 332(c)(7)(B)(i)(I). We reject both arguments.
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 ban against
all personal wireless communication services."). Under this
reasoning, Omnipoint may not prevail on its § (B)(i)(II) claim,
because Warrington's decision on its conditional use application
cannot fairly be regarded as a "blanket ban or policy."
Even if we were to construe Omnipoint's argument as an attack
on the ordinance as a blanket prohibition, however, the ordinance
still does not violate § (B)(i)(II). Because "tree towers"
currently are in use in locations along the Pennsylvania Turnpike
and in Blue Bell, Pennsylvania,*fn3 the tree condition cannot,
by hypothesis, have the real world effect of prohibiting the
provision of wireless services.
Omnipoint argues that Warrington's approval of its application
with the attachment of "onerous, arbitrary conditions" is
"tantamount to a denial." Pl.'s Resp. at 5. While it may be the
case that the imposition of certain conditions that result in
extreme financial hardships might "have the effect" of
prohibiting the provision of wireless services, that simply is
not the case here. The unrebutted affidavit of John W. Sieber,
P.E., states that the total cost for the site (without the tree
tower) may be as much as $444,475, rather than Omnipoint's
initial estimate of $134,000. See Sieber Aff. at ¶¶ 3-5. The
parties agree that the tree condition adds $150,000 to that base
figure. Thus, in contrast to Omnipoint's contention that the tree
condition more than doubled the cost of the project, in reality
it imposes an additional cost that is only about one-third the
cost of the entire project.*fn4 Furthermore, it is
possible to co-locate the communications antennae of different
cell phone providers on the same tower, giving Omnipoint another
potential source of income or costsharing (apart from any
increase in revenue it may realize as a result of improving its
services in Warrington Township).
We therefore reject Omnipoint's argument that the condition is
unlawfully "onerous." While in the abstract $150,000 is a
significant sum, for a company of Omnipoint's size*fn5 there is
no basis here to conclude that this expenditure would impair the
company's commercial viability. Its self-serving statement that
it "will not" build a site with a tree condition attached, see
Pl.'s Br. at 11, is insufficient to demonstrate that the tree
condition effectively prohibited Omnipoint's provision of
We also reject Omnipoint's contention that the "arbitrariness"
of the condition renders it violative of the TCA. The TCA is
clear: local governments retain their authority to regulate the
placement and construction of personal wireless service
facilities, provided that they do not prohibit the provision of
personal wireless services. We find that decisions about the
appearance of communication towers are at the heart of the
authority the TCA specifically reserved for state and local
governments. To hold otherwise would be to determine that
cellular phone companies may largely override all of the
legitimate powers of local zoning boards, a result Congress did
not contemplate when it drafted the TCA.
We therefore hold that Warrington has not violated
47 U.S.C. § 332(c)(7)(B)(i)(II).
B. Warrington Did Not Unreasonably Discriminate Among
Providers of Functionally Equivalent Services
47 U.S.C. § 332(c)(7)(B)(i) provides that:
The regulation of the placement, construction, and
modification of personal wireless service facilities
by any State or local government or instrumentality
(i) shall not unreasonably discriminate among
providers of functionally equivalent services.
In Sprint Spectrum, L.P. v. Jefferson County, 968 F. Supp. 1457,
1467-68 (N.D.Ala. 1997), the court held that the inquiry
into the reasonableness of governmental action "focuses on
whether a legitimate basis for the contested action is presented"
(internal quotation omitted). See also Omnipoint Comms. Enters.,
L.P. v. Newtown Township, 1999 WL 269936, at *2 (E.D.Pa. Apr.29,
1999) ("In order to prove unreasonable discrimination under the
Telecommunications Act, a plaintiff must demonstrate both unequal
treatment and that there was no basis for the unequal
Omnipoint argues that Warrington violated this provision of the
TCA because it only imposed the tree condition on Omnipoint, not
on any of the other communications providers in Warrington
Township. All of the instances Omnipoint cites in support of its
argument, however, are readily distinguishable from Omnipoint's
Omnipoint was the first and, so far as the record shows, the
only communications provider to apply for conditional use
approval under Warrington's new ordinance. See Pellegrino Dep.
at 14-15, 22. Omnipoint argues that on March 18, 1999, Warrington
issued a conditional use approval to Nextel Communications of the
Mid-Atlantic, Inc., ("Nextel") that did not contain a tree
condition. However, Nextel
was not seeking to erect a new communications tower, but merely
wanted to place an antenna on an already-existing tower and erect
a communications equipment building.*fn6 See S.R. at 352-54
(Warrington's decision on Nextel's application for conditional
use approval). Nextel's case is thus far removed from
Omnipoint also contends that Warrington issued a building
permit to AT & T Wireless Services on June 11, 1998 that did not
require "stealth" technology. Again, however, AT & T did not seek
to erect a new tower, but instead wanted to replace an existing
PECO power transmission structure with a communications structure
that would "match the existing structures in PECO corridor." S.R.
at 372.*fn7 Like Nextel's case, AT & T's situation differs
materially from Omnipoint's.
Omnipoint thus has failed to adduce any evidence in support of
its contention that Warrington unreasonably discriminated against
providers of functionally equivalent services. We therefore will
grant summary judgment in favor of Warrington on Count I of
III. Omnipoint's Claim Under 42 U.S.C. § 1983
Because we find that Warrington did not violate the TCA, we
will grant summary judgment in Warrington's favor on Omnipoint's
§ 1983 claim, as there has been no deprivation of any right,
privilege, or immunity "secured by the Constitution [or] laws" to
IV. Omnipoint's State Law Appeal
Finally, in Count III of its complaint, Omnipoint sets forth a
claim under unspecified Pennsylvania law. Under
28 U.S.C. § 1367(c)(3), we may decline to exercise supplemental jurisdiction
over state law claims if we have "dismissed all claim over which
[we] ha[d] original jurisdiction." See also United Mine Workers
v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218
(1966), a pre- § 1367 case in which the Supreme Court held that
"if the federal claims are dismissed before trial, . . . the
state claims should be dismissed as well."
Because we find that the Pennsylvania courts are the more
appropriate forum for Omnipoint's state law appeal, we will
decline to exercise supplemental jurisdiction over Count III of
While reasonable people may question Warrington's decision on
purely aesthetic grounds, see, e.g., S.R. at 350-51
(photographs of tree towers along the Pennsylvania Turnpike), we
hold that the Township did not violate the TCA by making that
decision. We therefore grant summary judgment in Warrington's
favor on Counts I and II of Omnipoint's complaint and dismiss
Count III without prejudice pursuant to 28 U.S.C. § 1367(c)(3).
AND NOW, this 20th day of September, 1999, upon consideration
of the parties' cross-motions for summary judgment, and the
responses thereto, and for the reasons stated in the accompanying
Memorandum, it is hereby ORDERED that:
1. Plaintiff's motion for summary judgment is DENIED;
2. Defendants' motion for summary judgment is GRANTED;
3. JUDGMENT IS ENTERED in favor of defendant Warrington
Township and against plaintiff Omnipoint Communications
Enterprises, L.P. on Counts I and II of plaintiff's complaint;
4. Count III of plaintiff's complaint is DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3); and
5. The Clerk shall CLOSE this case statistically.