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United States District Court, Eastern District of Pennsylvania

November 7, 2002


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

(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 substantial evidence contained in a written record.

(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.

47 U.S.C. § 332(c)(7).

Omnipoint argues that the restrictive zoning ordinance, coupled with the Township's refusal to lease unrestricted municipal property to Omnipoint, renders Omnipoint unable to fill a gap in its coverage, and therefore has "the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). Thus, Omnipoint contends that the TCA obligates the Township to lease its own municipal property to Omnipoint, and that the court may direct the Township to enter into such a lease. The Township counters that a municipality that declines to negotiate and enter into a lease with a telecommunications provider carrier does not violate the TCA, even when the applicable zoning ordinance leaves available no property where the tower can be built without obtaining a variance.

The issue presented is one of statutory construction.*fn4 "The first step in interpreting a statute is to determine `whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.'" Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir. 2001) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). A plain meaning approach dictates that the words used in a statute be accorded their ordinary meaning, see Elliot Coal Mining Co., Inc. v. Dir., Off. of Workers' Comp. Programs, 17 F.3d 616, 629 (3d Cir. 1994), and their dictionary meaning. See Algrant v. Evergreen Valley Nurseries Ltd. P'Ship., 126 F.3d 178, 188 (3d Cir. 1997). If application of the clear meaning rule discloses ambiguity, the court may resort to legislative history. But see Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (describing the use of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of guests for one's friends") (Scalia, J., concurring). When legislative history does not resolve ambiguity, the court may investigate other aids to construction, including the "object and policy" of the statute. See Richards v. United States, 369 U.S. 1, 10-11 (1962). In this case, however, the court need look no further than the plain meaning and legislative history of the statute to locate the answer.

First, a plain meaning reading 47 U.S.C. § 332(c)(7) reveals that a municipality's refusal to lease its property does not fall within the purview of the TCA. Most obviously, the section of the TCA 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 Dictionary 1451.

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 order follows.


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.


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