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OMNIPOINT COMM. ENTERPRISES v. TOWNSHIP OF NETHER PROVIDENCE

November 7, 2002

OMNIPOINT COMMUNICATIONS ENTERPRISES, L.P., PLAINTIFF,
V.
TOWNSHIP OF NETHER PROVIDENCE, DEFENDANT



The opinion of the court was delivered by: Eduardo C. Robreno, Judge

MEMORANDUM

I. INTRODUCTION

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.

II. DISCUSSION

The Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7), provides, in pertinent part, as follows:

Preservation of local zoning authority

(A) General 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.

(B) Limitations

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
(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 ...

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