relevant here is entitled "Preservation of local zoning
authority." 47 U.S.C. § 332(c)(7) (emphasis supplied). Black's Law
Dictionary describes zoning as "[t]he division of a city by legislative
regulation into districts and the prescription and application in each
district of regulations . . . prescribing use to which buildings within
designated districts may be put." Black's Law Dictionary 1793 (rev. 4th ed.
1968) (emphasis supplied). Unsurprisingly, therefore, the language of
47 U.S.C. § 332(c)(7)(B)(i) refers only to legislative "regulation of
the placement, construction, and modification of personal wireless
service facilities . . . ." 47 U.S.C. § 332(c)(7)(B)(i) (emphasis
supplied). "Regulation" is "a rule or order prescribed for management or
government . . . [or a] Rule of order prescribed by superior or competent
authority relating to action of those under its control." Black's Law
By contrast, a lease is "[a]ny agreement which gives rise to
relationship of landlord and tenant . . . [or a] Contract for exclusive
possession of lands or tenements for a definite period." Black's Law
Dictionary 1035. Far from being a "rule of order" imposed by a
legislature from above, a lease requires a mutually acceptable agreement
between parties entering a contract. As such, a lease cannot constitute a
form of "zoning" or "regulation" governed by
47 U.S.C. § 332(c)(7)(B)(i)(II).*fn5
Second, the TCA's legislative history is consistent with this result.
It is clear that the unequivocal focus of the legislation is on zoning
practices, and on preserving local authority over land regulation.
47 U.S.C. § 332(c)(7) was enacted out of Congress' "recogni[tion]
that there are legitimate State and local concerns involved in regulating
the siting of [telecommunications] facilities. . . ." Omnipoint Corp. v.
Zoning Hearing Bd. of Pine Grove Township, 181 F.3d 403, 407 (3d Cir.
1999) (quoting H.R. Rep. 104-204, at 94-95 (1996), reprinted in 1996
U.S.S.C.C.A.N. 10, 61.)
Rejecting a House proposal that the FCC alone
should regulate the siting of wireless telephone transmitters, Congress
enacted this provision to "prevent . . . preemption of local and State
land use decisions [by the FCC] and preserve the authority of State and
local governments over zoning and land use matters except in . . .
limited circumstances. . . ." Omnipoint Communications, Inc. v. City of
Scranton, 36 F. Supp.2d 222, 228 (M.D.Pa. 1999) (quoting H.R. Conf. Rep.
No. 104-458, at 207-08 (1996), reprinted in 1996 U.S.S.C.C.A.N. 10, 222)
(emphasis supplied). To put it another way, in the realm of zoning,
47 U.S.C. § 332(c)(7) reflects "a deliberate compromise between two
competing aims — to facilitate nationally the growth of wireless
telephone service and to maintain substantial local control over siting
of towers." Town of Amherst, N.H. v. Omnipoint Communications Enters.,
Inc., 173 F.3d 9, 13 (1st Cir. 1999).*fn6
Therefore, given the plain meaning and legislative history of
47 U.S.C. § 332(c)(7), the court concludes that, because the
Township's refusal to lease its own property does not constitute an
exercise of zoning or regulatory powers, the Township had no duty under
the TCA to negotiate or ultimately to lease portions of municipal
property to Omnipoint for the purpose of installing an antenna.
This does not mean, however, that Omnipoint is left without a remedy
based on the alleged violations of the TCA by the Township's zoning
scheme. Although Omnipoint's complaint centered on the combination of the
Township's restrictive zoning ordinance and its refusal to lease its own
property, it appears clear that, in actuality, Omnipoint's underlying
quarrel with the Township is over the zoning ordinance. Because the TCA
does govern challenges to zoning ordinances, Omnipoint may, of course,
purchase or lease suitable property from a private entity, apply for a
variance or special exception from the zoning ordinance, and, should the
zoning board deny the request, Omnipoint may seek relief in court for any
concomitant violation of the TCA involved in that zoning decision.*fn7
See Pine Grove, 181 F.3d at 405-06.
For the foregoing reasons, the court grants summary judgment in
favor of the
Township of Nether Providence on all claims.*fn8 An appropriate
AND NOW, this 7th day of November, 2002, it is HEREBY ORDERED that
plaintiff's motion for summary judgment (doc. no. 13) is DENIED, and
defendant's motion for summary judgment (doc. no. 15) is GRANTED.
AND IT IS SO ORDERED.