2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-5-2002

Nextel West Corp v. Unity

Precedential or Non-Precedential:

Docket 1-2030

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Recommended Citation

"Nextel West Corp v. Unity" (2002). 2002 Decisions. Paper 152.

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PRECEDENTIAL 

 Filed March 5, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-2030 

NEXTEL WEST CORP., a Delaware Corporation d/b/a 

NEXTEL COMMUNICATIONS 

v. 

UNITY TOWNSHIP, WESTMORELAND COUNTY, 

PENNSYLVANIA, a Political Subdivision of the 

Commonwealth of Pennsylvania; THE ZONING HEARING 

BOARD OF UNITY TOWNSHIP 

Nextel West Corp., d/b/a Nextel Communications, 

Appellant 

ON APPEAL FROM THE UNITED STATES 

DISTRICT COURT FOR THE WESTERN DISTRICT 

OF PENNSYLVANIA 

(Dist. Court No. 98-CV-1258) 

District Court Judge: Honorable Donald E. Ziegler 

Argued: October 18, 2001 

Before: MANSMANN, ALITO, and BARRY, Circuit Judges.

(Filed: March 5, 2002) 
 CLIFFORD B. LEVINE (Argued) 

 ALICE B. MITINGER 

 Thorp Reed & Armstrong, LLP 

 One Oxford Centre 

 301 Grant Street, 14th Floor 

 Pittsburgh, PA 15219 

 Counsel for Appellant 

 JOSEPH J. BOSICK 

 JEANETTE H. HO (Argued) 

 Pietragallo, Bosick & Gordon 

 One Oxford Centre 

 301 Grant Street, 38th Floor 

 Pittsburgh, PA 15219 

 Counsel for Appellee 

OPINION OF THE COURT 

ALITO, Circuit Judge: 

Nextel West Corporation ("Nextel"), a wireless 

telecommunications company, has attempted to gain 

permission from the defendants, Unity Township 

("Township") and its Zoning Hearing Board ("ZHB"), to build 

a 250-foot radio tower on private property in the Township, 

which is located southeast of Pittsburgh. On appeal to this 

Court, Nextel argues that the Township violated the federal 

Telecommunications Act of 1996 ("TCA"), see 47 U.S.C. 

S 332(c)(7) (2000), in two ways: (1) its zoning ordinance has 

the "effect of prohibiting" all wireless telecommunications 

towers in the Township, and (2) the Township's disparate 

treatment of Nextel and a competitor constituted 

"unreasonable discrimination" under the TCA. 47 U.S.C. S 

332(c)(7)(B)(i). The District Court held that the case was 

mooted by an amendment of the original zoning ordinance 

and therefore granted the Township's motion for summary 

judgement on all claims. Because we hold that this case is 

not moot, we reverse and remand for adjudication of the 

merits of Nextel's two TCA claims. 

 2 
I. 

To create a wireless network that provides uninterrupted 

cell phone service for a given geographical region, a 

telecommunications company must stitch together a 

patchwork of transmission cells. An antenna is located in 

the approximate center of a cell and the antenna transmits 

wireless signals to and from cell phone users in that cell. 

Because an antenna transmits signals on a line-of-sight 

basis, it is typically mounted on a tower or other tall 

structure. The perimeter of each cell is shaped by the 

topography surrounding the antenna. Where the terrain is 

flat, a cell is circular and several miles in diameter. But the 

hilly terrain of western Pennsylvania distorts the shape and 

shrinks the size of a cell. The gaps these distortions create 

complicate the process of stitching together cells to blanket 

the targeted region. 

Because each wireless company is licensed by the 

Federal Communications Commission ("FCC") to use a 

different radio frequency, and because different companies 

use different transmission technologies, each wireless 

provider must deploy its own network of antennae, spaced 

at intervals so that their cells interlock. Providers usually 

prefer to mount an antenna on a existing building or 

telecommunications tower. When no suitable buildings or 

towers are located in the area where an antennae is

needed, a company must build a new tower to provide

wireless service in that area. For a wireless provider, the 

absence of coverage over a high-use area (e.g. , a population 

cluster or major road) creates legal and commercial

problems. In order to retain its FCC license for a region, a 

licensee must achieve quality coverage (defined by the 

industry as the absence of "dropped" calls) for a certain 

percentage of the region's population within a certain 

number of years after the license was granted; if the 

licensee fails to do so, it will forfeit its entire license. See 47 

C.F.R. S 90.685(d) (2002). In addition, the ability to provide 

uninterrupted coverage in high-use areas is considered 

essential for a wireless company to remain competitive in 

that region. 

In this case, Nextel had a significant gap in service along 

 3 
a segment of U.S. Route 30, Unity's only major highway.1 In 

that area, there were no towers or other tall structures on 

which Nextel could co-locate a "viable" antenna, i.e., an 

antenna that would cover Nextel's gap along Route 30. 

Nextel therefore undertook a thorough search for a location 

where it could place a viable tower. 

The Township's original ordinance permitted 

telecommunications towers, inaptly categorized as"utility 

substations," only in manufacturing zones, and it limited 

these towers to 75 feet in height, well below the industry 

average in that region.2 See App. at 1110. The parties 

agreed that no tower built in any of the manufacturing 

districts would be viable.3 Instead, Nextel identified a 

nearby 38-acre farm where a viable tower could be located. 

The farm site was in a residential zoning district, just 

beyond the edge of a manufacturing district. The site was 

near Route 30 and would adequately cover the gap. 

Moreover, it did not appear that this location would present 

any aviation problem. 

Nextel applied to the ZHB for a variance to locate a tower 

on the farm site. In July 1998, the ZHB denied the 

variance. Nextel also filed an exclusionary challenge with 

the ZHB attacking the ordinance's validity under the TCA 

and state law. Nextel contended that the ordinance 

effectively prohibited wireless telecommunications facilities 

in the Township. When the ZHB failed to respond, Nextel's 

exclusionary challenge was deemed denied. In September 

1998, days after Nextel's exclusionary challenge was 

denied, the Township settled a lawsuit filed by Sprint, a 

_________________________________________________________________ 

1. A gap in service, i.e., an area not covered by wireless signals, 

results 

in dropped calls as callers enter the uncovered area. 

2. The average height of new cell towers in western Pennsylvania region 

is allegedly 100-150 feet. App. at 1059, 1064. 

3. Most districts were too close to the airport. Any tower in the 

airport's 

vicinity would require approval from the Federal Aviation Administration 

("FAA"), which was very unlikely, considering the height the tower would 

need to be to cover the service gap. See App. at 498-99. The remainder 

of the manufacturing districts were veiled from U.S. Route 30 by hills, 

and thus transmissions from a tower there would be topographically 

blocked. 

 4 
competitor of Nextel, after a state court reversed the ZHB's 

denial of Sprint's variance. See Sprint Spectrum v. Unity 

Township, 80 Westmoreland L.J. 53 (Pa. Ct. Common Pleas 

1998). Sprint had sought to build a cell tower in a

manufacturing district to cover a service gap in its network, 

but the proposed height of the tower (250 feet) far exceeded 

the ordinance's limit. In accordance with the settlement 

agreement, Sprint withdrew its exclusionary challenge 

against the ordinance, and the Township issued a variance 

that allowed Sprint to build its 250-foot tower. 

Nextel timely filed two TCA actions based on these two 

denials from the ZHB, and the District Court consolidated 

the two actions. While this litigation was pending before the 

District Court, the Township amended its original 

ordinance in February 1999 in three ways. First, the 

amended ordinance allowed wireless telecommunications 

towers in two additional zoning districts (agricultural and 

conservation, but still not residential). Second, it permitted 

towers as a "special exception" if the site in question 

satisfied certain criteria. See App. at 1201-06. Third, it 

raised the maximum height of towers in manufacturing 

districts to 180 feet and in agricultural and conservation 

districts to 150 feet (plus 50 feet more if the setback was 

sufficient). Nextel argues, however, that the criteria to 

qualify a tower site for a special exception are so

burdensome and the additional districts so remote from 

Route 30 that, in actuality, Nextel's ability to obtain 

approval for a viable tower was effectively unaltered by the 

amendment. 

After the amendment, the parties filed cross-motions for 

summary judgment. Nextel argued that the summary 

judgment record showed that (1) the original ordinance was 

impermissibly exclusionary under state law, (2) the original 

ordinance violated the federal TCA by effectively prohibiting 

wireless telecommunications services, and (3) the Township 

violated the TCA by unreasonably discriminating in favor of 

Sprint. The District Court granted summary judgment to 

the Township. It held that Nextel's claims under the TCA 

were mooted by the 1999 amendment of the ordinance.

Absent any allegation of diversity jurisdiction, the District 

Court found it had no supplemental jurisdiction over the 

 5 
pendent state law claims and dismissed them without

prejudice. 

II. 

This appeal presents three primary issues: (1) whether 

the 1999 amendment to the ordinance renders Nextel's two 

TCA claims either moot or unripe, (2) whether the 

ordinance has the "effect of prohibiting" wireless facilities 

and thus violates the TCA, and (3) whether the Township 

violated the TCA by "unreasonably discriminat[ing]" against 

Nextel.4 Nextel requests an injunction directing the 

Township to permit Nextel to build a 250-foot tower on the 

farm site. The District Court's opinion addressed only the 

first issue (mootness) and found it dispositive. We hold that 

the 1999 amendment to the Township's ordinance did not 

moot either of Nextel's two claims under the TCA. We 

therefore remand the case to the District Court to 

adjudicate the merits of Nextel's two TCA claims and any 

state law claims over which supplemental jurisdiction is 

appropriate. 

A. 

The Constitution permits a federal court to exercise 

jurisdiction only over cases or controversies. See U.S. 

Const., art. III. If a claim no longer presents a live case or 

controversy, the claim is moot and the federal court lacks 

jurisdiction to hear it. See Allen v. Wright, 468 U.S. 737, 

750 (1984). This requirement must be met "through all 

stages of federal judicial proceedings, trial and appellate." 

Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). 

If the claim is based on a statute or ordinance that is 

_________________________________________________________________ 

4. The TCA provides, in relevant part, as follows: 

 The regulation of the placement, construction, and modification of 

 personal wireless service facilities by any State or local 

government 

 or instrumentality thereof -- (I) shall not unreasonably 

discriminate 

 among providers of functionally equivalent services; and (II) shall 

not 

 prohibit or have the effect of prohibiting the provision of 

personal 

 wireless services. 

47 U.S.C. S 332(c)(7)(B)(i) (emphasis added). 

 6 
amended after the litigation has begun, the amendment 

may or may not moot the claim, depending on the impact 

of the amendment. 

On the one hand, if an amendment removes those 

features in the statute being challenged by the claim, any 

claim for injunctive relief "`becomes moot as to those 

features."' Khodara Envtl., Inc. v. Beckman , 237 F.3d 186, 

194 (3d Cir. 2001) (holding that facial constitutional 

challenges -- on equal protection and other grounds -- 

were mooted by an amendment that significantly broadened 

the statute's scope and thus alleviated these facial claims) 

(quoting Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 

(11th Cir. 1992); see also Diffenderfer v. Central Baptist 

Church, 404 U.S. 412, 414-15 (1972) (holding that a facial 

challenge was mooted by an amendment that substantially 

altered the objectionable statutory provision). Similarly, if 

the amendment provides sufficient relief to the plaintiff, the 

claim becomes moot. See U.S. Dept. of Treasury v. Galioto, 

477 U.S. 556, 559-60 (1986) (holding that an amendment 

that gave plaintiffs a new administrative remedy mooted 

constitutional challenges regarding equal protection and 

irrebuttable presumptions); Black United Fund of New 

Jersey, Inc. v. Kean, 763 F.2d 156, 160-61 (3d Cir. 1985) 

(holding plaintiff's claims were mooted by an amendment 

because the "raison d'etre for the injunction no longer 

exists," and noting that the amendment "will give plaintiff 

substantially the relief it sought in the district court"). 

On the other hand, an amendment does not moot the 

claim if the updated statute differs only insignificantly from 

the original. See Northeastern Florida Chapter of the 

Associated Gen. Contractors of Am. v. City of Jacksonville, 

508 U.S. 656, 662 (1993) (rejecting a misinterpretation of 

the holding in City of Mesquite v. Aladdin's Castle, Inc., 455 

U.S. 283 (1982), that would permit "a defendant[to] moot 

a case by repealing the challenged statute and replacing it 

with one that differs only in some insignificant respect"). A 

claim is not mooted by the amendment if the "gravamen of 

petitioner's complaint" remains because, although the new 

ordinance "may disadvantage [plaintiffs] to a lesser degree 

than the old one," still "it disadvantages them in the same 

fundamental way." Id.; see also Coalition for the Abolition of 

 7 
Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 

1313-15 (11th Cir. 2000) (holding the challenged provisions 

of the old ordinance "have not been sufficiently altered [by 

the amendment] so as to eliminate the issues raised" and 

that the violations alleged under the old ordinance could be 

reasonably expected to continue under the new ordinance); 

Naturist Soc'y, 958 F.2d at 1520 ("Where a superceding 

statute leaves objectionable features of the prior law 

substantially undisturbed, the case is not moot. . .. To the 

extent that those [challenged] features remain in place, and 

changes in the law have not so fundamentally altered the 

statutory framework as to render the original controversy a 

mere abstraction, the case is not moot."). 

In Khodara, we held that, although facial challenges were 

mooted by the amendment, the as-applied challenges were 

not moot because relief was still available for these claims, 

which the amendment had not redressed.5 See Khodara, 

237 F.3d at 195-96. In Rosetti v. Shalala, 12 F.3d 1216 (3d 

Cir. 1993), we held the case was not mooted by the 

promulgation of new regulations because they gave 

plaintiffs "only some, not all, of the relief they sought." 12 

F.3d at 1233. Although the plaintiffs had requested relief in 

the form of new regulations, they had also sought a

_________________________________________________________________ 

5. In Khodara, we determined the mootness of plaintiff's claims according 

to the availability of relief after the statute was amended. After the 

statute was amended, the prospective declaratory and injunctive relief 

sought through the facial challenges was moot, but the damages sought 

through the as-applied challenges saved these latter claims from 

mootness. The plaintiff's "claim for damages for the past application [of 

the original statute] invests it with a continuing, concrete stake in the 

outcome of this litigation that has not been redressed by the passage of 

the [recent] Amendment." Id. at 196. 

We reject the Township's mistaken argument that seizes on the 

existence of a claim for damages as the litmus test for mootness. The 

Township's contention -- because Nextel seeks only injunctive relief and 

not damages, the 1999 amendment moots Nextel's claims -- 

misinterprets our reasoning in Khodara. It was the continuing 

availability of relief, unredressed by the amendment, that kept the 

controversy alive in Khodara. Similarly, the relief requested by Nextel -- 

declaring the ordinance invalid and/or enjoin the Township to permit 

Nextel to build its farm-site tower -- remain meaningful and available 

after the 1999 amendment. 

 8 
separate form of injunctive relief that was unaddressed and 

was therefore not mooted by these new regulations. See id. 

1. Claim of Prohibitive Effect. Applying this case law to 

Nextel's first TCA claim, we hold that the Township's 

amendment did not sufficiently alter the ordinance to moot 

the question whether Unity's ordinance effectively prohibits 

wireless facilities. Even though the amendment did, on its 

face, loosen the zoning restrictions on wireless towers, the 

controversy over its effect remains alive, and injunctive 

relief remains available. According to Nextel, both before 

and after the amendment, the ordinance effectively 

prohibited Nextel from locating a tower in any viable 

location. Nextel argues that the changes introduced by the 

amendment -- an increase in height limits, the addition of 

two types of zoning districts, and the special exception 

procedure -- still provided no feasible location for a tower 

that could cover the gap in service. Under the Khodara 

analysis, the challenged feature of the original ordinance 

(i.e., its allegedly prohibitive effect) was not removed by the 

amendment. 

In the language of Northeastern Florida Chapter , both 

before and after the amendment, "the gravamen" of Nextel's 

complaint remained: the allegedly prohibitive effect of the 

Township's ordinance still violated the TCA. 508 U.S. at 

662. Both before and after amendment, Nextel was 

allegedly "disadvantag[ed] in the same fundamental way": it 

still cannot place a viable tower anywhere in the Township. 

Id. As for the continuing availability of requested relief, 

crucial in Rosetti, the amendment in no way redressed 

Nextel's request for site-specific, injunctive relief. 

In holding that Nextel's TCA claims were moot, the 

District Court did not compare the effect of the original 

ordinance and the amended ordinance. It did not discuss 

whether and to what extent the allegedly prohibitive effect 

of the original ordinance had been altered by the 

amendment. Instead, the Court reasoned that because the 

amendment added something to the ordinance-- namely, 

criteria under which towers could be permitted as special 

exceptions -- Nextel's claims had become moot. See App. at 

19-20. The District Court relied on Burke v. Barnes, 479 

U.S. 361, 363 (1987) and Diffenderfer for the proposition 

 9 
that a statute's expiration or repeal deprives the plaintiff of 

injunctive and declaratory relief. But that rule is

inapplicable here, because the original ordinance was 

merely amended. More appropriate for these facts is the 

mootness inquiry from Northeastern Florida Chapter and 

Khodara, i.e., whether the amendment sufficiently altered 

or removed the challenged aspects of the original legislation 

to moot the underlying claims. 

2. Claim of Unreasonable Discrimination. In addition to its 

claim that the Township's ordinance violated the TCA by 

effectively prohibiting cell towers, Nextel also claimed that 

the defendants violated the TCA by discriminating against 

it and in favor of a competitor, Sprint. We hold that this 

claim is also not moot. The District Court failed to make a 

distinction between Nextel's two separate TCA claims. The 

District Court's opinion did not explain how a change in the 

text of an ordinance could moot a claim of past 

discriminatory conduct. 

Nextel seeks a remedy for the Township's decision to 

deny its variance request, while granting a similar variance 

to Sprint. The variance permitted Sprint to build its tower 

in a manner otherwise impermissible under either the 

original or amended ordinance. Even if the amendment had 

mooted Nextel's first claim by purging the ordinance of its 

allegedly prohibitive effect, the amendment in no way 

altered Nextel's claim of unreasonably discriminatory 

conduct by the Township. This controversy is very much 

alive. 

B. 

Although the District Court did not discuss ripeness, the 

appellees have urged us to affirm the decision of the 

District Court on the alternative ground that Nextel's claims 

are not ripe. We are convinced, however, that Nextel's TCA 

claims are ripe for adjudication on the merits by the 

District Court. We reject the Township's argument that 

Nextel's claims are unripe because Nextel has not yet 

applied for a permit or variance under the amended 

ordinance. We find the Township's position -- that any 

amendment to a zoning ordinance forces an applicant to 

 10 
reapply in order for its TCA claim to ripen -- extreme and 

contrary to precedent. 

The Township's position would enable a municipality to 

trap telecommunications plaintiffs in a litigation limbo 

between mootness and unripeness, frustrating the TCA's 

purpose. Under the Township's approach, as long as a 

municipality passed an insignificant amendment after each 

TCA action was filed, it could block telecommunications 

plaintiffs' access to court, even though expedited review in 

federal court is the benefit Congress expressly intended to 

confer on wireless providers by enacting the TCA. See 47 

U.S.C. S 332 (c)(7)(B)(v). The Supreme Court squarely 

rejected this theory when discussing mootness in 

Northeastern Florida Chapter. See 508 U.S. at 662 (rejecting 

a rule that would permit "a defendant [to] moot a case by 

repealing the challenged statute and replacing it with one 

that differs only in some insignificant respect"). We thus 

hold that Nextel's claims are ripe. 

C. 

On remand, the District Court must weigh the merits of 

two TCA claims that require separate analyses but work 

together to effectuate the purpose of the statute. 6 First, the 

District Court must determine whether the ordinance had 

_________________________________________________________________ 

6. The federal Telecommunications Act of 1996 seeks to create "a procompetitive, de-regulatory national policy framework designed to rapidly 

accelerate private sector deployment of advanced telecommunication and 

information technologies and services to all Americans by opening all 

telecommunications markets to competition." H.R. Conf. Rep. No. 104- 

458 at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124. It seeks to 

balance this goal against the legitimate concerns of state and local 

governments in regulating the siting of wireless facilities. See H.R. 

Conf. 

Rep. No. 104-204, at 94-95 (1995), reprinted in 1996 U.S.C.C.A.N. 61. 

Though Nextel makes two separate claims under the TCA, the two 

provisions from which these claims derive -- effectively prohibit and 

unreasonably discriminate -- work together to promote the expansion of 

wireless telecommunications networks by protecting telecommunications 

plaintiffs. 

The first provision (forbidding ordinances which effectively prohibit 

wireless facilities) aims to open up municipalities to wireless providers 

generally. The second provision (against unreasonable discrimination) 

seeks to ensure that, once the municipality allows the first wireless 

provider to enter, the municipality will not unreasonably exclude 

subsequent providers who similarly wish to enter and create a 

competitive market in telecommunications services. 
 11 
a prohibitive effect on wireless facilities. Second, it must 

decide whether the Township unreasonably discriminated 

against Nextel. 

1. Prohibitive effect. The TCA states that ordinances are 

actionable if they "prohibit or have the effect of prohibiting 

the provision of personal wireless services." 47 U.S.C. S 332 

(c)(7)(B)(i) (2000). The statute does not define what 

constitutes prohibitive effect, but case law provides 

guidance. We have interpreted the "effect of prohibiting" 

clause to include a situation in which a zoning ordinance 

causes "significant gaps" in wireless coverage, and we have 

suggested that a "significant commuter highway" would 

present such a gap. Cellular Tel. Co. v. Ho-ho-kus, 197 F.3d 

64, 70 (3d Cir. 1999) (finding the phrase "effect of 

prohibiting" to mean "more than simply ensuring that 

personal wireless services are available somewhere in the 

relevant jurisdiction"). 

A recent decision by this Court involved facts similar to 

those now before us.7 In APT Pittsburgh Ltd. Partnership v. 

Penn Township, 196 F.3d 469 (3d Cir. 1999), we adopted a 

two-prong test to determine whether an ordinance had the 

prohibitive effect that the TCA forbids.8 See 196 F.3d at 

480-81. To satisfy the first prong, "the provider must show 

that its [proposed] facility will fill an existing significant gap 

... in the service available to remote users." Id. at 480. We 

defined this prong as requiring a gap from a user's

perspective, rather than a particular provider's perspective. 

Thus, this prong focuses on whether any provider is

covering the gap, instead of whether the gap exists only in, 

for example, Nextel's service. A provider must "include 

evidence that the area the new facility will serve is not 

already served by another provider."9 Id. In the present 

_________________________________________________________________ 

7. The wireless provider suffered from a gap in coverage along a hilly 

township's major highway corridor. It unsuccessfully sought a variance 

to locate a tower in a rural area (zoned residential). A zoning amendment 

then restricted wireless telecommunications towers to three 

manufacturing districts, none of which were technologically feasible and 

available for the provider. See APT Pittsburgh , 196 F.3d at 472. 

8. The test is also employed in Sprint Spectrum, L.P. v. Willoth, 176 F.3d 

630, 639 (2d Cir. 1999). 

9. However, if an applicant is denied a permit to cover an area when 

other providers have been approved, this may violate a different 

 12 
case, the relevant testimony on this issue is scant and 

conclusory, but it suggests that a gap existed for all 

providers and not only Nextel.10 In oral argument, counsel 

for Nextel asserted that no provider covers this gap but did 

not refer to any evidence. On remand, the District Court 

should make a factual determination as to whether this 

service gap existed for all or for Nextel alone. 

The second prong of the prohibitive-effect test in APT 

Pittsburgh requires the telecommunications plaintiff to show 

"that the manner in which it proposes to fill the significant 

gap in service is the least intrusive on the values that 

denial sought to serve." Id. The court offered examples of a 

good-faith effort to find and evaluate less intrusive 

alternatives: consideration of other sites, other system 

designs, other tower designs, existing structures, etc. See 

id. Whether the farm site is the least intrusive means to fill 

the gap in service is a decision for the District Court on 

remand. We note that Nextel put forward testimony 

suggesting that its proposal is relatively unintrusive.11 The 

_________________________________________________________________ 

provision in the TCA: unreasonable discrimination. Both the Willoth and 

APT Pittsburgh courts note that, even if a particular provider's gap is 

already serviced by another provider, "the TCA may invalidate the denial 

of a variance [to the new entrant] if it has the effect of unreasonably 

discriminating between providers." APT Pittsburgh, 196 F.3d at 480 n.8. 

10. According to the affidavit of Nextel's expert witness, Mr. Monfredi 

(an 

outside consultant and engineer) concluded that, after conducting tests 

using multiple sites and frequencies, "no licensed provider of wireless 

telecommunications services, regardless of the frequency at which it 

operates, can provide functional service to the Unity Corridor and to the 

Unity Communities if such carrier is required to strictly comply with 

either the 1998 Ordinance or the Subsequent [1999] Ordinance." App. at 

1379-80. 

The Township did not refute this statement with any evidence. Instead, 

it objected that Monfredi's tests insufficiently explore possibilities 

under 

the amendment's increased height allowances. 

At minimum, the record shows that not a single cell tower has been 

permitted in the Township under the ordinance. The sole tower (Sprint's) 

was built pursuant to a variance from limits imposed by the ordinance, 

granted only as part of a settlement. See App. at 1188, 1191. 

11. Nextel's expert witness stated that "where collocation on existing 

structures is not feasible, it is commonplace for municipalities to prefer 

 13 
record lacks a direct response from the Township regarding 

intrusiveness; instead the Township referred (but did not 

commit itself) to an alternative proposal to build two or 

three shorter towers.12 

2. Unreasonable discrimination. Independent of Nextel's 

claim of prohibitive effect, Nextel makes a claim of 

unreasonable discrimination under the TCA. The TCA 

requires that the "regulation of the placement, 

construction, and modification of personal wireless service 

facilities by [local governments] ... shall not unreasonably 

discriminate among providers of functionally equivalent 

services." 47 U.S.C. S 332(c)(7)(B)(i). Another two-prong test 

emerges from this provision. See APT Pittsburgh Ltd. P'ship 

v. Lower Yoder Township, 111 F. Supp. 2d 664, 674-75 

(W.D. Pa. 2000). In this analysis, the first prong asks 

whether the relevant providers are "functionally equivalent." 

47 U.S.C. S 332(c)(7)(B)(i). If they are, then the second 

prong asks whether the governmental body "unreasonably 

discriminate[d] among providers." Id. In the instant case, 

the record clearly shows that Sprint and Nextel are

functionally equivalent.13 On remand, therefore, the District 

Court should examine whether the Township's 

discrimination against Nextel and in favor of Sprint was 

reasonable. 

_________________________________________________________________ 

the construction of a single tower to multiple towers. This preference 

holds even if the single tower must be built to a greater height than 

would be necessary with additional sites." App. at 1387-88. 

12. Nextel's expert witness testified that the use of multiple sites "has 

many limitations that make it impractical." App. at 1382. 

13. We think the equivalency of function relates to the 

telecommunications services the entity provides, not to the technical 

particularities (design, technology, or frequency) of its operations. The 

TCA clearly does not force competing wireless providers to adopt 

identical technology or design nor does it compel them to fit their 

networks of antennae into a uniform, rigid honeycomb of interlocking 

cells. Indeed, the FCC's assignment of a different frequency and signal 

strength to each licensee renders such uniformity impossible. In this 

region, Sprint and Nextel provide the same service-- personal wireless 

communications services to remote users -- and therefore are 

functionally equivalent. 

 14 
To preserve the ability of local governments and zoning 

boards to take into account the uniqueness of land, the 

TCA "explicitly contemplates that some discrimination ... is 

allowed. Any discrimination need only be reasonable." AT&T 

Wireless PCS, Inc. v. City Council of Virginia Beach , 155 

F.3d 423, 427 (4th Cir. 1998); see also Sprint Spectrum, L.P. 

v. Willoth, 176 F.3d 630, 638 (2d Cir. 1999). In a footnote 

in APT Pittsburgh, we stated that relief under the TCA's 

discrimination provision "will require a showing that the 

other provider is similarly situated, i.e., that the`structure, 

placement or cumulative impact' of the existing facilities 

makes them as or more intrusive than the proposed 

facility." 196 F.3d at 480 n.8. Discrimination may be 

impermissible where a municipality favors one provider by 

permitting it to locate in a particular area at the exclusion 

of others, thereby creating unfair competitive advantage. 

See Western PCS II, Corp. v. Extraterritorial Zoning Auth., 

957 F. Supp. 1230, 1237-38 (D.N.M. 1997). 

The record before us is insufficient to determine 

conclusively whether Sprint and Nextel were indeed 

similarly situated and whether the Township's 

discrimination was unreasonable. Thus far, Nextel has 

shown strong similarities between the two situations. 

Initially, both Sprint and Nextel had a service gap in the 

Township, both proposed to build a 250-foot tower, both 

were denied a variance, both appealed the ZHB's denial, 

and both filed exclusionary challenges against the 

Township. However, after the Court of Common Pleas of 

Westmoreland County reversed the denial of Sprint's

variance, the Township decided to settle with Sprint. 

Pursuant to the agreement, the Township gave Sprint the 

site-specific relief it requested (a variance to build its 250- 

foot tower) and Sprint withdrew its exclusionary challenge. 

By contrast, Nextel received no variance and no explanation 

as to why its exclusionary challenge was denied only days 

before the Township settled with Sprint. If, on remand, the 

District Court can find no reasonable basis for this 

discrimination, then Nextel should prevail on this claim. 

III. 

For the reasons explained above, the order of the District 

Court granting summary judgment in favor of the Township 

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is REVERSED and the case is remanded for three factspecific determinations: (1) whether the service gap was 

suffered by all wireless providers or only Nextel, (2) whether 

erecting a tower at the farm site proposed by Nextel was the 

least intrusive means for covering the gap in service along 

U.S. Route 30, and (3) whether the Township's 

discrimination between Nextel and Sprint was 

unreasonable. If the District Court finds that no provider 

was covering the service gap and that the farm site was the 

least intrusive means of covering that gap, or it finds that 

the Township's discrimination was unreasonable, then 

Nextel is entitled to remedies available under the TCA. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 16