The opinion of the court was delivered by: Eduardo C. Robreno, Judge
Omnipoint is a provider of wireless communications between portable
telephone customers. In order to provide the service, Omnipoint must
arrange for "cell sites" that connect cellular telephone signals into
ordinary telephone lines in a honeycomb pattern, which enables the areas
served by different cell sites to overlap. Omnipoint contends that there
is a gap in coverage, i.e., an area where Omnipoint's signal will not
reach its customers, along Pennsylvania Route 252, a major north-south
road. To improve its service, Omnipoint wishes to place an antenna hidden
inside a flagpole located at the Municipal Building in the Township of
Nether Providence, Pennsylvania ("Township").
Because of the Township's zoning ordinance, there is, however, no
private land within the Township available for development as sought by
Omnipoint.*fn1 There are, however, several parcels owned by the Township
that could serve as adequate cell sites for Omnipoint's antenna.
Omnipoint sought to lease one of these properties, the Municipal
Building, to serve as a cell site. The Township refused the offer.
Omnipoint contends that the Township's zoning scheme, together with the
Township's refusal to lease Township property to Omnipoint constitutes a
violation of the Telecommunications Act of 1996. The TCA, in essence,
enjoins municipal bodies from enacting land regulations that "have the
effect of prohibiting the provision of personal wireless services."
47 U.S.C. § 332(c)(7)(B)(i)(II). Omnipoint claims that, under the
TCA, it is entitled to damages, and to an order of the court directing
the Township to lease the Municipal Building to Omnipoint to be used as a
cell site for its communications facility.*fn2 The
Township has moved
for summary judgment*fn3 arguing that its conduct does not implicate the
TCA. For the reasons that follow, the court agrees that summary judgment
in favor of the Township is proper.
The Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7),
provides, in pertinent part, as follows:
Preservation of local zoning authority
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.
(i) The regulation of the placement, construction, and
modification of personal wireless service facilities
by any State or local government or instrumentality
(II) shall not prohibit or have the effect of
prohibiting the provision of personal wireless
(iii) Any decision by a State or local government or
instrumentality thereof to deny a request to place,
construct, or modify personal wireless service
facilities shall be in writing and supported by