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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 T ownship, 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 ord inance has the "effect of prohibiting" all wireless telecommun ications towers in the Township, and (2) the Township's disp arate 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 c ase was mooted by an amendment of the original zoning ordin ance and therefore granted the Township's motion for sum mary 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.

2I.

To create a wireless network that provides uninterr upted cell phone service for a given geographical region, a telecommunications company must stitch together a patchwork of transmission cells. An antenna is loca ted in the approximate center of a cell and the antenna tr ansmits wireless signals to and from cell phone users in th at cell. Because an antenna transmits signals on a line-of-s ight 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 terra in is flat, a cell is circular and several miles in diame ter. But the hilly terrain of western Pennsylvania distorts the shape and shrinks the size of a cell. The gaps these distorti ons 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 co mpanies use different transmission technologies, each wirel ess provider must deploy its own network of antennae, s paced
at intervals so that their cells interlock. Provide rs usually prefer to mount an antenna on a existing building o r telecommunications tower. When no suitable building s 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 provi der, 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 c ertain percentage of the region's population within a cert ain number of years after the license was granted; if t he 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 conside red essential for a wireless company to remain competit ive in that region.

In this case, Nextel had a significant gap in servi ce along

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

that area, there were no towers or other tall struc tures on which Nextel could co-locate a "viable" antenna, i. e., an antenna that would cover Nextel's gap along Route 3 0. 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"u tility substations," only in manufacturing zones, and it l imited these towers to 75 feet in height, well below the i ndustry average in that region.2 See App. at 1110. The par ties agreed that no tower built in any of the manufactur ing districts would be viable.3 Instead, Nextel identif ied a nearby 38-acre farm where a viable tower could be l ocated. The farm site was in a residential zoning district, just beyond the edge of a manufacturing district. The si te was near Route 30 and would adequately cover the gap. Moreover, it did not appear that this location woul d 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 challen ge with the ZHB attacking the ordinance's validity under th e TCA
and state law. Nextel contended that the ordinance effectively prohibited wireless telecommunications facilities in the Township. When the ZHB failed to respond, Ne xtel's exclusionary challenge was deemed denied. In Septem ber 1998, days after Nextel's exclusionary challenge wa s denied, the Township settled a lawsuit filed by Spr int, a

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

results in dropped calls as callers enter the uncovered are a.

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. An y tower in the airport's vicinity would require approval from the Federal Av iation Administration ("FAA"), which was very unlikely, considering the h eight the tower would need to be to cover the service gap. See App. at 49 8-99. 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.

4competitor 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 P leas 1998). Sprint had sought to build a cell tower in a manufacturing district to cover a service gap in it s network, but the proposed height of the tower (250 feet) far exceeded
the ordinance's limit. In accordance with the settl ement agreement, Sprint withdrew its exclusionary challen ge against the ordinance, and the Township issued a va riance 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 consol idated 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, th e amended ordinance allowed wireless telecommunicatio ns towers in two additional zoning districts (agricult ural and conservation, but still not residential). Second, i t permitted towers as a "special exception" if the site in ques tion satisfied certain criteria. See App. at 1201-06. Th ird, it raised the maximum height of towers in manufacturin g districts to 180 feet and in agricultural and conse rvation districts to 150 feet (plus 50 feet more if the set back was sufficient). Nextel argues, however, that the crite ria to qualify a tower site for a special exception are so
burdensome and the additional districts so remote f rom Route 30 that, in actuality, Nextel's ability to ob tain approval for a viable tower was effectively unalter ed by the

amendment.

After the amendment, the parties filed cross-motion s for summary judgment. Nextel argued that the summary judgment record showed that (1) the original ordina nce was impermissibly exclusionary under state law, (2) the original ordinance violated the federal TCA by effectively p rohibiting wireless telecommunications services, and (3) the T ownship 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 th e TCA were mooted by the 1999 amendment of the ordinance. Absent any allegation of diversity jurisdiction, th e District Court found it had no supplemental jurisdiction ove r the

5pendent state law claims and dismissed them without

prejudice.

II.

This appeal presents three primary issues: (1) whet her
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 Town ship violated the TCA by "unreasonably discriminat[ing]" against Nextel.4 Nextel requests an injunction directing th e Township to permit Nextel to build a 250-foot tower on the farm site. The District Court's opinion addressed o nly 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. W e therefore remand the case to the District Court to adjudicate the merits of Nextel's two TCA claims an d any state law claims over which supplemental jurisdicti on is appropriate.

A.

The Constitution permits a federal court to exercis e jurisdiction only over cases or controversies. See U.S. Const., art. III. If a claim no longer presents a l ive case or controversy, the claim is moot and the federal cour t lacks jurisdiction to hear it. See Allen v. Wright, 468 U .S. 737, 750 (1984). This requirement must be met "through a ll stages of federal judicial proceedings, trial and a ppellate." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).
If the claim is based on a statute or ordinance tha t is

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

The regulation of the placement, constructio n, 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 s ervices; and (II) shall

not prohibit or have the effect of prohibiting t he provision of personal
wireless services.

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

6amended after the litigation has begun, the amendme nt

may or may not moot the claim, depending on the imp act
of the amendment.

On the one hand, if an amendment removes those features in the statute being challenged by the cla im, any claim for injunctive relief "`becomes moot as to th ose features."' Khodara Envtl., Inc. v. Beckman , 237 F .3d 186, 194 (3d Cir. 2001) (holding that facial constitutio nal challenges -- on equal protection and other grounds -- were mooted by an amendment that significantly broa dened the statute's scope and thus alleviated these facia l 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 substanti ally altered the objectionable statutory provision). Sim ilarly, if the amendment provides sufficient relief to the pla intiff, the claim becomes moot. See U.S. Dept. of Treasury v. G alioto, 477 U.S. 556, 559-60 (1986) (holding that an amendm ent that gave plaintiffs a new administrative remedy mo oted constitutional challenges regarding equal protectio n and irrebuttable presumptions); Black United Fund of Ne w Jersey, Inc. v. Kean, 763 F.2d 156, 160-61 (3d Cir. 1985) (holding plaintiff's claims were mooted by an amend ment because the "raison d'etre for the injunction no lo nger exists," and noting that the amendment "will give p laintiff 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 insignifi cantly from the original. See Northeastern Florida Chapter of t he Associated Gen. Contractors of Am. v. City of Jacks onville, 508 U.S. 656, 662 (1993) (rejecting a misinterpreta tion 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 repl acing it with one that differs only in some insignificant re spect"). A claim is not mooted by the amendment if the "gravam en of petitioner's complaint" remains because, although t he new ordinance "may disadvantage [plaintiffs] to a lesse r degree than the old one," still "it disadvantages them in the same fundamental way." Id.; see also Coalition for the A bolition of

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

1313-15 (11th Cir. 2000) (holding the challenged pr ovisions of the old ordinance "have not been sufficiently al tered [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 ordin ance); Naturist Soc'y, 958 F.2d at 1520 ("Where a superced ing statute leaves objectionable features of the prior law substantially undisturbed, the case is not moot. . .. To the extent that those [challenged] features remain in p lace, and changes in the law have not so fundamentally altere d the statutory framework as to render the original contr oversy a mere abstraction, the case is not moot.").

In Khodara, we held that, although facial challenge s were mooted by the amendment, the as-applied challenges were not moot because relief was still available for the se claims,
which the amendment had not redressed.5 See Khodar a, 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

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5. In Khodara, we determined the mootness of plaint iff's claims according to the availability of relief after the statute was amended. After the statute was amended, the prospective declaratory an d injunctive relief sought through the facial challenges was moot, but the damages sought through the as-applied challenges saved these latte r claims from mootness. The plaintiff's "claim for damages for th e past application [of the original statute] invests it with a continuing, concrete stake in the outcome of this litigation that has not been redres sed by the passage of the [recent] Amendment." Id. at 196.

We reject the Township's mistaken argument that sei zes 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 clai ms -- misinterprets our reasoning in Khodara. It was the continuing availability of relief, unredressed by the amendmen t, that kept the controversy alive in Khodara. Similarly, the relief requested by Nextel -- declaring the ordinance invalid and/or enjoin the T ownship to permit
Nextel to build its farm-site tower -- remain meani ngful and available

after the 1999 amendment.

8separate form of injunctive relief that was unaddre ssed 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 to wers, the controversy over its effect remains alive, and inju nctive relief remains available. According to Nextel, both before and after the amendment, the ordinance effectively prohibited Nextel from locating a tower in any viab le location. Nextel argues that the changes introduced by the amendment -- an increase in height limits, the addi tion of two types of zoning districts, and the special exce ption procedure -- still provided no feasible location fo r a tower that could cover the gap in service. Under the Khod ara analysis, the challenged feature of the original or dinance (i.e., its allegedly prohibitive effect) was not re moved by the

amendment.

In the language of Northeastern Florida Chapter , b oth before and after the amendment, "the gravamen" of N extel's complaint remained: the allegedly prohibitive effec t 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 T ownship. Id. As for the continuing availability of requested relief, crucial in Rosetti, the amendment in no way redress ed Nextel's request for site-specific, injunctive reli ef.

In holding that Nextel's TCA claims were moot, the District Court did not compare the effect of the or iginal
ordinance and the amended ordinance. It did not dis cuss whether and to what extent the allegedly prohibitiv e 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 s pecial 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 propo sition

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

injunctive and declaratory relief. But that rule is inapplicable here, because the original ordinance w as merely amended. More appropriate for these facts is the mootness inquiry from Northeastern Florida Chapter and Khodara, i.e., whether the amendment sufficiently a ltered or removed the challenged aspects of the original l egislation to moot the underlying claims.

2. Claim of Unreasonable Discrimination. In additio n to its claim that the Township's ordinance violated the TC A by effectively prohibiting cell towers, Nextel also cl aimed that the defendants violated the TCA by discriminating a gainst it and in favor of a competitor, Sprint. We hold th at this
claim is also not moot. The District Court failed t o make a distinction between Nextel's two separate TCA claim s. The District Court's opinion did not explain how a chan ge in the text of an ordinance could moot a claim of past discriminatory conduct.

Nextel seeks a remedy for the Township's decision t o deny its variance request, while granting a similar variance to Sprint. The variance permitted Sprint to build i ts tower in a manner otherwise impermissible under either th e original or amended ordinance. Even if the amendmen t had mooted Nextel's first claim by purging the ordinanc e of its allegedly prohibitive effect, the amendment in no w ay altered Nextel's claim of unreasonably discriminato ry conduct by the Township. This controversy is very m uch
alive.

B.

Although the District Court did not discuss ripenes s, the appellees have urged us to affirm the decision of t he District Court on the alternative ground that Nexte l's claims are not ripe. We are convinced, however, that Nexte l's TCA claims are ripe for adjudication on the merits by t he District Court. We reject the Township's argument t hat Nextel's claims are unripe because Nextel has not y et 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

10reapply in order for its TCA claim to ripen -- extr eme 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 TC A's purpose. Under the Township's approach, as long as a municipality passed an insignificant amendment afte r each TCA action was filed, it could block telecommunicat ions plaintiffs' access to court, even though expedited review in federal court is the benefit Congress expressly int ended to confer on wireless providers by enacting the TCA. S ee 47 U.S.C. S 332 (c)(7)(B)(v). The Supreme Court square ly 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 c ase by repealing the challenged statute and replacing it w ith 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 w ork together to effectuate the purpose of the statute. 6 First, the
District Court must determine whether the ordinance had

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6. The federal Telecommunications Act of 1996 seeks to create "a procompetitive, de-regulatory national policy framewor k designed to rapidly accelerate private sector deployment of advanced te lecommunication and information technologies and services to all Americ ans by opening all telecommunications markets to competition." H.R. Co nf. Rep. No. 104- 458 at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 1 24. It seeks to balance this goal against the legitimate concerns o f state and local governments in regulating the siting of wireless fa cilities. See H.R.

Conf. Rep. No. 104-204, at 94-95 (1995), reprinted in 199 6 U.S.C.C.A.N. 61.

Though Nextel makes two separate claims under the T CA, the two provisions from which these claims derive -- effect ively prohibit and unreasonably discriminate -- work together to promo te the expansion of wireless telecommunications networks by protecting telecommunications plaintiffs.

The first provision (forbidding ordinances which ef fectively prohibit wireless facilities) aims to open up municipalities to wireless providers generally. The second provision (against unreasonab le discrimination) seeks to ensure that, once the municipality allows the first wireless provider to enter, the municipality will not unreas onably exclude subsequent providers who similarly wish to enter an d create a competitive market in telecommunications services.11a prohibitive effect on wireless facilities. Second , it must

decide whether the Township unreasonably discrimina ted against Nextel.

1. Prohibitive effect. The TCA states that ordinanc es 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 wh at constitutes prohibitive effect, but case law provid es guidance. We have interpreted the "effect of prohib iting" clause to include a situation in which a zoning ord inance causes "significant gaps" in wireless coverage, and we have suggested that a "significant commuter highway" wou ld present such a gap. Cellular Tel. Co. v. Ho-ho-kus, 197 F.3d 64, 70 (3d Cir. 1999) (finding the phrase "effect o f prohibiting" to mean "more than simply ensuring tha t personal wireless services are available somewhere in the relevant jurisdiction").

A recent decision by this Court involved facts simi lar to those now before us.7 In APT Pittsburgh Ltd. Partne rship v. Penn Township, 196 F.3d 469 (3d Cir. 1999), we adop ted a two-prong test to determine whether an ordinance ha d the prohibitive effect that the TCA forbids.8 See 196 F.3d at 480-81. To satisfy the first prong, "the provider m ust 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 pe rspective. 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 "inc lude evidence that the area the new facility will serve is not already served by another provider."9 Id. In the p resent

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7. The wireless provider suffered from a gap in cov erage along a hilly township's major highway corridor. It unsuccessfull y sought a variance to locate a tower in a rural area (zoned residentia l). A zoning amendment
then restricted wireless telecommunications towers to three manufacturing districts, none of which were technol ogically feasible and available for the provider. See APT Pittsburgh , 19 6 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 c over an area when other providers have been approved, this may violat e a different

12case, 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 ga p but did not refer to any evidence. On remand, the District Court
should make a factual determination as to whether t his service gap existed for all or for Nextel alone.

The second prong of the prohibitive-effect test in APT Pittsburgh requires the telecommunications plaintif f to show "that the manner in which it proposes to fill the s ignificant gap in service is the least intrusive on the values that denial sought to serve." Id. The court offered exam ples of a good-faith effort to find and evaluate less intrusi ve alternatives: consideration of other sites, other s ystem designs, other tower designs, existing structures, etc. See
id. Whether the farm site is the least intrusive me ans to fill the gap in service is a decision for the District C ourt on remand. We note that Nextel put forward testimony suggesting that its proposal is relatively unintrus ive.11 The

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provision in the TCA: unreasonable discrimination. Both the Willoth and APT Pittsburgh courts note that, even if a particul ar 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 ef fect of unreasonably discriminating between providers." APT Pittsburgh, 196 F.3d at 480 n.8.

10. According to the affidavit of Nextel's expert w itness, Mr. Monfredi
(an outside consultant and engineer) concluded that, af ter conducting tests using multiple sites and frequencies, "no licensed provider of wireless telecommunications services, regardless of the freq uency at which it operates, can provide functional service to the Uni ty Corridor and to the Unity Communities if such carrier is required to st rictly 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 ex plore 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 impose d by the ordinance, granted only as part of a settlement. See App. at 1 188, 1191.

11. Nextel's expert witness stated that "where coll ocation on existing structures is not feasible, it is commonplace for m unicipalities to prefer

13record lacks a direct response from the Township re garding

intrusiveness; instead the Township referred (but d id not commit itself) to an alternative proposal to build two or
three shorter towers.12

2. Unreasonable discrimination. Independent of Next el's claim of prohibitive effect, Nextel makes a claim o f
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 unr easonably discriminate among providers of functionally equiva lent 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, 674-7 5 (W.D. Pa. 2000). In this analysis, the first prong asks whether the relevant providers are "functionally eq uivalent." 47 U.S.C. S 332(c)(7)(B)(i). If they are, then the second prong asks whether the governmental body "unreasona bly discriminate[d] among providers." Id. In the insta nt case, the record clearly shows that Sprint and Nextel are functionally equivalent.13 On remand, therefore, th e District Court should examine whether the Township's discrimination against Nextel and in favor of Sprin t was
reasonable.

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the construction of a single tower to multiple towe rs. This preference holds even if the single tower must be built to a g reater 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, no t to the technical particularities (design, technology, or frequency) of its operations. The TCA clearly does not force competing wireless provi ders to adopt identical technology or design nor does it compel t hem to fit their networks of antennae into a uniform, rigid honeycom b of interlocking cells. Indeed, the FCC's assignment of a different frequency and signal strength to each licensee renders such uniformity i mpossible. In this region, Sprint and Nextel provide the same service- - personal wireless
communications services to remote users -- and ther efore are functionally equivalent.

14To preserve the ability of local governments and zo ning

boards to take into account the uniqueness of land, the TCA "explicitly contemplates that some discriminati on ... is allowed. Any discrimination need only be reasonable ." AT&T Wireless PCS, Inc. v. City Council of Virginia Beac h , 155 F.3d 423, 427 (4th Cir. 1998); see also Sprint Spec trum, 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 th at the other provider is similarly situated, i.e., that th e`structure, placement or cumulative impact' of the existing fac ilities 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 provi der by permitting it to locate in a particular area at the exclusion of others, thereby creating unfair competitive adva ntage. See Western PCS II, Corp. v. Extraterritorial Zonin g 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 h as shown strong similarities between the two situation s. 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 den ial, 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 Sprin t. Pursuant to the agreement, the Township gave Sprint the site-specific relief it requested (a variance to bu ild its 250- foot tower) and Sprint withdrew its exclusionary ch allenge. By contrast, Nextel received no variance and no exp lanation as to why its exclusionary challenge was denied onl y days before the Township settled with Sprint. If, on rem and, the
District Court can find no reasonable basis for thi s discrimination, then Nextel should prevail on this claim.

III.

For the reasons explained above, the order of the D istrict Court granting summary judgment in favor of the Tow nship

15is REVERSED and the case is remanded for three fact specific determinations: (1) whether the service ga p was suffered by all wireless providers or only Nextel, (2) whether erecting a tower at the farm site proposed by Nexte l was the least intrusive means for covering the gap in servi ce 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 p rovider was covering the service gap and that the farm site was the least intrusive means of covering that gap, or it f inds that the Township's discrimination was unreasonable, the n 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