2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-5-2003

Omnipoint Comm Entr v. Zoning Hearing

Precedential or Non-Precedential: Precedential

Docket No. 02-2194

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PRECEDENTIAL

Filed June 4, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2194

OMNIPOINT COMMUNICATIONS

ENTERPRISES, L.P.,

Appellant

v.

ZONING HEARING BOARD OF

EASTTOWN TOWNSHIP

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 99-cv-02080)

Magistrate Judge: Hon. Jacob P. Hart

Argued: December 19, 2002

Before: SLOVITER, McKEE, and ROSENN, Circuit Judges

Sur Panel Rehearing Submitted May 13, 2003

Before: SLOVITER, McKEE, and ROSENN, Circuit Judges

(Filed: June 4, 2003)

Paul J. Lawrence (Argued)

Jay Carlson

Preston, Gates & Ellis

Seattle, WA 98104-7078
James C. Dalton

Christopher H. Schubert

Riley, Riper, Hollin & Colagreco

Paoli, PA 19301-0568

Attorneys for Appellant

Andrew D. H. Rau (Argued)

Unruh, Turner, Burke & Frees

West Chester, PA 19381-0562

John S. Halsted

Gawthrop, Greenwood & Halsted

West Chester, PA 19381-0562

Paola Tripodi Kaczynski

Holsten & Associates

Media, PA 19063-3301

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge. 

This matter is before us on a Petition for Rehearing filed

by the Easttown Township Zoning Board (“Zoning Board”)

from the decision of this panel filed February 12, 2003. In

that opinion, originally reported at 319 F.3d 627 (3d Cir.

2003), we considered the appeal of Omnipoint

Communications Enterprises, L.P. from the decision of the

Magistrate Judge who upheld the Zoning Board’s rejection

of Omnipoint’s application for a variance to locate its

telecommunications tower in a residential district. In our

original decision authored by Judge Rosenn we affirmed in

part, but vacated in part and remanded to the Magistrate

Judge with directions to recalculate the call failure rate in

the area at issue to determine whether there is a significant

gap in telecommunications service in Easttown Township. 

The Zoning Board filed a Petition for Rehearing arguing

that the panel decision was contrary to the decision of this

court in APT Pittsburgh Ltd. v. Penn Township, 196 F.3d

469 (3d Cir. 1999), where we held that a provider whose

2
application has been denied must show both that its facility

will fill an existing significant gap in the ability of remote

users to access the national telephone network and that the

manner in which it proposes to fill that gap is the least

intrusive on the values that the denial sought to serve. The

Petition for Rehearing argued that the panel decision erred

in its conclusion regarding the manner in which the

relevant gap should be determined. We directed Omnipoint

to file an Answer to the Petition for Rehearing, and after

reconsideration the panel majority has vacated the original

opinion and agreed with the position of the Zoning Board

for the reasons set forth hereafter. Judge Rosenn continues

to adhere to the position in his original opinion. Because

the panel majority disagrees only with parts II and VII of

the original opinion, we reproduce the introduction

(excising only the last sentence thereof), Parts I, III, IV, V

and VI of Judge Rosenn’s original opinion which we

incorporate herewith, inserting asterisks to reflect

omissions: 

This case raises several important questions concerning

the burgeoning wireless telecommunications industry

and the interpretation and application of the

Telecommunications Act, 47 U.S.C. § 151 et seq. (TCA).

Omnipoint is a wireless telecommunications provider that

claims that there is a gap in the wireless

telecommunications services available to remote users in

Easttown Township, Pennsylvania. Omnipoint sued the

Zoning Hearing Board (ZHB or Zoning Board) in the United

States District Court for the Eastern District of

Pennsylvania, claiming that the ZHB violated the

prohibition and anti-discrimination provisions of the TCA

by denying Omnipoint’s request for a variance to locate a

telecommunications tower in a residential district. See 47

U.S.C. § 332(c)(7)(B)(i). Furthermore, Omnipoint alleges that

the ordinance under which its variance application was

denied violates Pennsylvania law because it is either de jure

or de facto exclusionary and fails to provide a “fair share”

of Township land for telecommunications uses. 

The District Court initially issued a writ of mandamus

ordering the ZHB to grant a variance because the Court

held that the ZHB decision relied exclusively on aesthetic

3
concerns in its denial and not on substantial evidence

supporting rejection. 72 F. Supp.2d 512 (E.D. Pa. 1999).

We vacated this writ and remanded the case to the District

Court for reconsideration in light of APT Pittsburgh Ltd. v.

Penn Township, 196 F.3d 469 (3d Cir. 1999). See Omnipoint

Communications Enterprises, L.P. v. Zoning Hearing Bd. of

Easttown Township, 248 F.3d 101 (3d Cir. 2001)

(Omnipoint I). On remand, Magistrate Judge Hart (MJ)

denied Omnipoint’s claims because he concluded that

Omnipoint had failed to establish a “significant gap” or

unreasonable discrimination under the TCA, or

unconstitutional exclusion under Pennsylvania law. 

* * *

I.

Omnipoint is a licensed provider of wireless digital

telephone communications services. As such, it uses a low

power radio signal that is transmitted between a portable

telephone and an Omnipoint antenna. The antenna then

feeds the radio signal to an electronic device that is located

nearby. In turn, that device connects the signal to an

ordinary telephone line and routes it anywhere in the

world. The combination of antenna and equipment is

known as a cell site. Because of the low radio signal used

by Omnipoint, the range of the cell site is quite small. For

example, in Easttown Township, the maximum coverage of

a cell site is two miles. When a wireless communication

facility (WCF) is not available to cover a specific geographic

area, customers who live in or travel through that area will

experience unreliable service, dropped calls, or an inability

to connect to the Personal Communication Service (PCS)

network.1

Omnipoint sought to place a PCS tower in Easttown

Township because of the gap in its wireless service.

Omnipoint hoped to construct a 110-foot stealth flagpole

designed PCS tower, 24 inches in diameter at the base and

1. PCS differs from “cellular” technology in that it allows for the digital,

wireless transmission of video, text, and messaging information in

addition to the transmission of voices. 

4
tapering to 16 inches at the top.2

 The fiberglass flagpole

structure is designed to incorporate the

telecommunications antennae which would be invisible

from the outside. For this flagpole, Omnipoint leased space

on land owned by the Or Shalom Synagogue, located in an

area zoned as residential. Under Easttown’s zoning

ordinance, a communications tower is not a permissible

use in residential districts and no residential structure may

be higher than thirty-five feet.3

Omnipoint applied to Easttown Township’s Zoning

Hearing Board for use and height variances. It also

challenged the validity of the zoning ordinance under

Pennsylvania law and the TCA. Omnipoint alleged that the

extant ordinance prohibited or effectively prohibited

wireless service in violation of the TCA. ZHB held three

public hearings on the applications at which a number of

local citizens complained that the stealth tower would be an

eyesore. ZHB issued a detailed written decision denying

Omnipoint’s application and stating that the ordinance was

valid under both Pennsylvania and federal law. 

The District Court granted Omnipoint’s motion for

summary judgment in part and ordered ZHB to grant

Omnipoint’s application. 72 F. Supp.2d 512 (E.D. Pa. 1999).4

2. WCFs must be mounted at a minimum height, which varies depending

on the topography and vegetation of the region, the amount of service

area to be covered, and other factors. The proposed tower would be

located within a thirty-feet by thirty-feet enclosure, surrounded by an

eight-foot high chain-link fence topped with barbed wire. See ZHB

Decision, A 668. 

3. At the time of Omnipoint’s zoning application, the ordinance did not

explicitly provide for communications towers. Easttown has since

amended its ordinance to allow cellular communications facilities as a

conditional use in business and multi-family conditional use districts.

See 72 F. Supp.2d at 514 n.2. 

4. The District Court did not rule on Omnipoint’s state law claims or its

claim that the ZHB’s decision violated 47 U.S.C. § 332(c)(7)(B)(i)(II) by

prohibiting wireless service. Omnipoint’s federal suit also included a civil

rights claim under 42 U.S.C. § 1983 which Judge Katz denied because

he ruled that the TCA’s remedial scheme was sufficiently comprehensive

to infer Congress’ intent to foreclose § 1983 remedies. See 72 F. Supp.2d

at 517. Judge Katz also found that Omnipoint had not shown a

substantive due process violation. Id.

5
We vacated that decision. On remand, the parties

consented to have the case proceed in a bench trial before

the U.S.M.J. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.5 The

parties supplemented the record with expert reports and

testimony regarding telecommunications services in

Easttown. Omnipoint’s principal witness, radio frequency

engineer Paul Dugan, supervised drive tests in which

approximately six hundred forty actual calls were made

using eight cell phones of various providers. Dugan

asserted that a signal strength of “negative 85 dbm” was

necessary for reliable service.6 On April 1, 2002, the MJ

entered judgment in favor of ZHB. See 189 F. Supp.2d 258

(E.D. Pa. 2002). The MJ found that Omnipoint had failed to

establish a correlation between the negative 85 dBm

standard and users’ actual ability to access the national

telephone network. The MJ placed significant weight on his

finding that mobile phones other than Omnipoint’s

experienced problems only 1.96% of the time in Easttown.

See 189 F. Supp.2d at 265. He also concluded that the

ordinance was not exclusionary. Omnipoint timely appealed.7

* * *

III.

The Magistrate Judge found as a fact that Omnipoint’s

stealth flagpole was the least intrusive of the possible

alternatives. See 189 F. Supp.2d at 262. We do not disturb

this finding because it is not “clearly erroneous.” See

Warner-Lambert Co., 204 F.3d at 89 n.1. The Township

cites the ZHB’s original findings that Omnipoint considered

few other sites and approached a horse farmer but did not

5. This case involves a mixture of federal and state claims. The federal

claims arise under the TCA. The Magistrate Judge had jurisdiction over

these claims pursuant to 28 U.S.C. § 1331. The Magistrate Judge also

had jurisdiction to resolve Omnipoint’s state statutory and constitutional

challenges to the ordinance pursuant to 28 U.S.C. § 1367(a). See

Omnipoint I, 248 F.3d at 108 n.5. 

6. Omnipoint has not cited any Federal Communication Commission

standard for call completion rates. See 189 F. Supp.2d at 264. 

7. The MJ’s April 1, 2002 decision was a final order for the purposes of

28 U.S.C. § 1291. 

6
follow up. ZHB’s brief also criticizes Omnipoint for not

engaging in studies to assess the visual and auditory

impact of the flagpoles on the neighboring properties. 

Magistrate Judge Hart found that the horse farmer was

not interested in leasing the property and that Omnipoint

considered other sites but did not choose them because

Omnipoint was involved in unrelated litigation with the

owners. See 129 F. Supp.2d at 262-63.8 Thus, the MJ’s

finding that the stealth flagpole was the least restrictive

alternative is not clearly erroneous.

IV.

In Pennsylvania, a land use restriction is a valid exercise

of a municipality’s police power when it promotes public

health, safety, and welfare and is substantially related to

the purpose it purports to serve. See Kirk v. Zoning Hearing

Bd of Honey Brook, 713 A.2d 1226, 1229 (Pa. Commw.

1998). A zoning ordinance is presumed valid and a party

challenging it has a heavy burden of proving its invalidity.

See Penn Township, 196 F.3d at 475. This presumption can

be overcome by proof that the ordinance totally excludes an

otherwise legitimate use. See Farrell v. Worcester Township

Bd. of Supervisors, 481 A.2d 986, 989 (Pa. Commw. Ct.

1984).9 Exclusionary ordinances take two forms: de jure

and de facto. De jure exclusion exists where “the ordinance,

on its face, totally bans a legitimate use.” Id. De facto

8. Moreover, the MJ could reasonably have concluded that a tower in the

business district would not have remedied Omnipoint’s gap because

Omnipoint explained that the maximum coverage of its technology’s cell

sites in the Township is two miles. 

9. A party seeking a use variance must show that the zoning restriction

“inflicts unnecessary hardship on the applicant,” and: (1) that there are

unique physical circumstances or conditions peculiar to the property

that create the hardship; (2) that because of these circumstances or

conditions, there is no possibility that the property can be developed in

conformity with the zoning ordinance; (3) that the applicant did not

create the unnecessary hardship; (4) that the variance, if granted, would

not alter the essential character of the area; and (5) that the variance, if

granted, would represent the least modification possible to the regulation

at issue. 53 P.S. § 10910.2 (2002). 

7
exclusion exists “where an ordinance permits a use on its

face, but when applied acts to prohibit the use throughout

the municipality.” Id.

10 The MJ held that Easttown

Township Ordinance 160-80 was neither de jure nor de

facto exclusionary. We agree.

The ordinance is not facially exclusionary. As interpreted,

it does not totally ban a legitimate use. Although the

ordinance did not explicitly provide for telecommunications

towers, the ZHB twice granted variances for

telecommunications towers in the business district under a

catch-all provision. 189 F. Supp.2d at 266. Omnipoint

argues that a telecommunications tower does not fall within

the catch-all provision because it is not of the same

“general character” as any of the enumerated uses.

However, the ZHB’s interpretation of a municipality’s zoning

ordinance is entitled to weight because it reflects the

construction of a statute by an entity charged with its

execution and application. See Sprint Spectrum v. Zoning

Hearing Bd. of Mahoning Township, 46 Pa. D. & C.4th 187,

192 (Carbon County CCP 2000). Furthermore, simply

because an ordinance does not expressly permit a use does

not necessarily mean that it negates that use. Cf. APT

Pittsburgh Ltd. P’ship v. Lower Yoder Township, 111 F.

Supp.2d 664, 670 (W.D. Pa. 2000). Otherwise, the TCA

would force localities to enshrine every change in the

telecommunications industry into local ordinances at an

unrealistically rapid rate. See id. 

The ordinance was not de facto exclusionary either.

10. Exclusionary impact can invalidate an ordinance without evidence of

exclusionary intent. Overstreet v. Zoning Hearing Bd. of Schuylkill

Township, 618 A.2d 1108, 1113 (Pa. Commonw. Ct. 1992). If a party

rebuts the presumption of constitutionality by presenting sufficient

evidence that an ordinance is exclusionary, the burden then shifts to the

state to demonstrate that the zoning ordinance bears a substantial

relationship to public health, safety and welfare. Id.; see also Exton

Quarries, Inc. v. Zoning Bd. of Adjustment of W. Whiteland Township, 228

A.2d 169, 179 (Pa. 1967) (“[A] zoning ordinance which totally excludes a

particular business from an entire municipality must bear a more

substantial relationship to the public health, safety, morals and general

welfare than an ordinance which merely confines that business to a

certain area in the municipality.”). 

8
Omnipoint argues that the height restrictions contained in

the zoning ordinance effectively prohibit the establishment

of functional telecommunication facilities in Easttown

Township. The ordinance contained a thirty-five foot height

restriction in residential areas and a fifty-foot height

restriction in business districts. See 189 F. Supp.2d at 267.

The Magistrate Judge rejected this argument because the

ZHB had previously granted height variances for

communications facilities. Id. at 268; see also Penn

Township, 196 F.3d at 476 (explaining that “to succeed in

its exclusionary zoning claim . . . [the Plaintiff] had to prove

that no other telecommunications provider, including itself,

could build a functional tower . . .”).11

Omnipoint’s alternative argument under the “fair share”

principle also fails. The “fair share” principle applies when

an ordinance only partially excludes a land use. An

ordinance is exclusionary when a municipality fails to

provide for its “fair share” of a legitimate land use such as

multi-family dwellings. See Surrick v. Zoning Hearing Bd. of

the Township of Upper Providence, 382 A.2d 105 (Pa. 1977).

Local political units must plan for and provide land-use

regulations that meet the legitimate needs of all categories

of people who may desire to live within its boundaries. See

id. at 108.12

11. Omnipoint argues that Easttown Township cannot circumvent an

otherwise exclusionary zoning ordinance by relying on the availability of

a variance because of the high hurdles applicants must normally face to

obtain a variance. Cf. Girsh Appeal, 263 A.2d 395 (Pa. 1970). This

argument has greater force when plaintiffs seek a use variance, as in

Girsh Appeal, rather than a height variance. See 189 F. Supp.2d at 268.

A use variance is more burdensome to obtain than a height variance.

Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721

A.2d 43, 47 (Pa. 1998). Although Omnipoint sought both a use and a

height variance, its argument that the ordinance is de facto exclusionary

necessarily focuses on the ordinance’s height restrictions. Thus, the MJ

properly rejected this argument. 

12. In Surrick, the Pennsylvania Supreme Court articulated several

factors to be considered in applying the “fair share” principle in the

housing context: (1) whether the area is a logical area for development

and population growth; (2) the present level of development; (3)

population density data; (4) the percentage of total undeveloped land;

and (5) the percentage of undeveloped land available for development.

See Surrick, 382 A.2d at 110. 

9
Omnipoint contends that Easttown Township fails to

provide a “fair share” allowance for telecommunications

uses. The B-Business District comprises only 1.1% of the

total area of Easttown Township.13 The relevant inquiry is

whether Omnipoint has carried its “heavy burden” of

showing that the needs of the community’s residents are

not being adequately served. See Montgomery Crossing

Assoc. v. Township of Lower Gwynedd, 758 A.2d 285, 289

(Pa. Cmwlth. Ct. 2000); Schubach v. Silver, 336 A.2d 328,

335 (Pa. 1975). Other telecommunications providers have

been able to serve the needs of their customers by placing

towers within the business district. To overcome the

presumption that the ordinance is constitutional,

Omnipoint would have had to show a causal link between

the small area of land zoned for business use and the

community residents’ inability to meet their needs. This, it

failed to do.

V.

In its original complaint, Omnipoint alleged that ZHB’s

denial of Omnipoint’s application constituted a violation of

47 U.S.C. § 332(c)(7)(B)(i)(I) because ZHB unreasonably

discriminated against “providers of functionally equivalent

services.” Judge Katz denied this claim on the ground that

Omnipoint had not shown discrimination, reasonable or

otherwise. See 72 F. Supp.2d at 515 n.3. In its crossappeal of Judge Katz’s decision, Omnipoint did not include

the court’s finding on the discrimination issue. Omnipoint I,

248 F.3d at 103. The MJ ruled that this discrimination

issue was not properly before him because it had not been

presented to the panel on the first appeal. See 189 F.

Supp.2d at 270. 

Omnipoint argues that a cross-appeal is only required

when the appellee advances an issue on appeal that aspires

to alter the trial court’s decision. Cf. New Castle County v.

Hartford Accident & Indem. Co., 933 F.2d 1162, 1205 (3d

13. The Township contests this finding and argues that the business

district is larger than Omnipoint asserted it was at trial. However, the

MJ adopted the 1.1% figure as a fact, see 189 F. Supp.2d at 269, and

this finding is not clearly erroneous. 

10
Cir. 1991). Appellee is free to assert any alternative theory

in support of the District Court’s decision, even without a

formal cross-appeal. See id.; see also Scott v. Univ. of

Delaware, 601 F.2d 76, 91-92 (3d Cir. 1979) (Adams, J.,

concurring). 

The discrimination issue is properly before us and we

now reject Omnipoint’s argument on the merits. The

TCA prohibits unreasonable discrimination against

“providers of functionally equivalent services.” 47 U.S.C.

§ 332(c)(7)(B)(i)(I). The TCA does not prohibit all

discrimination against providers, only unreasonable

discrimination. See AT & T Wireless PCS v. Virginia Beach,

155 F.3d 423, 427 (4th Cir. 1998). 

In Nextel, we explained that the purpose of the

“unreasonable discrimination” language of § 332(7)(B)(i)(I) is

to ensure that once the municipality allows the first

wireless provider to enter, the municipality may not

unreasonably exclude subsequent providers who similarly

wish to enter and create a competitive market in

telecommunications services. See Nextel, 282 F.3d at 264

n.6. Nextel creates a two-part test for determining if a

zoning board has unreasonably discriminated. First, the

plaintiff must show that the relevant providers are

functionally equivalent. Second, the plaintiff must show

that the government body unreasonably discriminated. Id.

at 266. 

The equivalency of function relates to the

telecommunications services the entity provides rather than

to the technical particularities of its operations. See id. at

266 n.13. We hold that Omnipoint is functionally

equivalent to the other telecommunications providers that

were granted variances in Easttown Township. 

Omnipoint’s discrimination claim fails under the second

part of the test. Permitting the erection of a

communications tower in a business district does not

compel the ZHB to permit a similar tower at a later date in

a residential district. See Sprint Spectrum L.P. v. Willoth,

176 F.3d 630, 639 (2d Cir. 1999); see also H.R. Conf. Rep.

104-458, at 208, reprinted in 1996 U.S.C.C.A.N. at 222

(“the conferees do not intend that if a State or local

11
government grants a permit in a commercial district, it

must also grant a permit for a competitor’s 50-foot tower in

a residential district”). The two communications towers that

existed in Easttown at the time of Omnipoint’s application

were both located in areas zoned for business rather than

residential use. See 72 F. Supp.2d at 515 n.3. Thus, the

ZHB’s denial was not unreasonable and Omnipoint’s

§ 332(c)(7)(B)(i)(I) challenge fails.14

VI.

Omnipoint dedicates a significant portion of its brief to a

direct attack on Penn Township. It points to the TCA, which

seeks to create a “pro-competitive, 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; see also Nextel, 282 F.3d at 264

n.6. Omnipoint argues that Penn Township undermines

Congress’ purpose of creating a competitive market for

telecommunications services and has the effect of

14. Omnipoint’s argument to the contrary focuses on the ugliness of the

monopole previously approved by the ZHB for placement at the Berwyn

Fire Company and the relative ease with which a variance was granted

in that case. Even if the Berwyn Fire Company monopole is uglier than

the proposed Omnipoint structure, that does not alter Omnipoint’s

intention to place its PCS tower in an area zoned for residential use.

Furthermore, Omnipoint contests the ZHB’s finding that the proposed

flagpole would be a “blight” that would “loom over residential

communities.” Our role “is not to weigh the evidence contained in the

record or substitute [our] own conclusions for those of the fact finder,”

but rather “to determine whether there is substantial evidence in the

record as a whole to support the challenged decision.” Cellular Tel. Co.

v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64,

71 (3d Cir. 1999); Omnipoint I, 248 F.3d at 106. Many community

residents objected after seeing the plans and Omnipoint’s land planning

expert conceded that the tower would be “taller than most I have seen”

in a residential area. ZHB Decision, A 670. The ZHB and the MJ both

found that the 110-foot flagpole would be a blight that would loom over

the residential community. This finding was supported by substantial

evidence. 

12
privileging first entrants with antiquated technology over

subsequent entrants who could promote consumer welfare

by creating competition and offering superior services. We

decline to address this question because a panel cannot

overrule existing Third Circuit precedent. See 3d Cir.

Internal Operating Proc. 9.1. 

* * *

Sur Rehearing

In Part II of the original opinion, we addressed

Omnipoint’s argument that the Township zoning ordinance

has “the effect of prohibiting the provision of personal

wireless services” in violation of the TCA. The issue before

us on rehearing is the manner in which to determine the

existence of a “significant gap.” That is the portion of the

original opinion that we have withdrawn and the issue we

now consider. 

Congress enacted the TCA to provide “ ‘a pro-competitive,

de-regulatory national policy framework designed to rapidly

accelerate private sector deployment of advanced

telecommunications and information technologies and

services to all Americans by opening all telecommunications

markets to competition.’ ” Penn Township, 196 F.3d at 473

(citation omitted). The TCA preserves the authority of state

and local government to regulate land use, but limits that

authority with respect to personal wireless service facilities.

Id. The TCA provides:

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 . . . 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

13
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. § 332(c)(7) (emphasis added). 

In Penn Township, 196 F.3d 469, we considered the

claims of APT, a wireless communications provider, which

had been denied a zoning variance that it sought so that it

could erect a communications tower and remedy a gap in

coverage in its wireless service. APT claimed, inter alia, that

the zoning ordinance was unconstitutional under

Pennsylvania law and violated the TCA because it had the

“effect of prohibiting the provision of personal wireless

services” in the township. The township’s ordinance did

provide for communications towers in the township’s light

industrial districts but APT concluded that land in those

districts was either not technologically feasible for it or

unavailable. APT then argued that the ordinance was

unconstitutionally exclusionary, an argument we rejected:

The fact that the design APT has chosen for its

system enables it to erect the tower that it wishes to

build only on a relatively small portion of the land in

the M Districts does not make Ordinance 109

exclusionary. Pennsylvania’s rule against exclusionary

zoning does not impose upon a township the duty to

assure that all providers, regardless of the systems

they have chosen to construct, will have a suitable site

for a functioning tower within the township. To be

exclusionary, the ordinance must effectively foreclose

not only APT’s use, but all use. 

Id. at 477. 

We also rejected APT’s claim that the zoning ordinance

had “the effect of prohibiting the provision of personal

wireless services” in violation of the TCA. We explained that

“[i]nterpreting the TCA’s ‘effect of prohibiting’ clause to

encompass every individual zoning denial simply because it

has the effect of precluding a specific provider from

14
providing wireless services . . . would give the TCA

preemptive effect well beyond what Congress intended.” Id.

at 478. 

We recognized that there can be circumstances in which

a provider would be able to “establish that an individual

adverse zoning decision has the ‘effect’ of violating [the

TCA].” Id. at 479. In that connection, we approvingly quoted

the decision in Sprint Spectrum, L.P. v. Willoth, 176 F.3d

630 (2d Cir. 1999), where that court concluded that the

most compelling reading of the “effect of prohibiting”

provision is that “ ‘local governments may not regulate

personal wireless service facilities in such a way as to

prohibit remote users from reaching such facilities. In other

words, local governments must allow service providers to fill

gaps in the ability of wireless telephones to have access to

land-lines.’ ” Penn Township, 196 F.2d at 479 (quoting

Willoth, 176 F.3d at 642-43). 

We agreed with the Willoth court’s recognition that the

TCA preserved the regulatory authority of local zoning

boards who may insist that service gaps be closed by the

least intrusive means. Id. Furthermore, because “the focus

is on the remote users’ access to the national telephone

network, the authority of the local board to deny

applications is greater where the area which the provider

applicant seeks to serve is already served by another

provider.” Id. at 479-80. Nonetheless, the Board’s denial of

an application is subject to the TCA provision prohibiting

unreasonable discrimination among providers. Id.

In Penn Township we set forth what a provider must

produce to show a violation of the TCA: 

[I]t is necessary for the provider to show more than

that it was denied an opportunity to fill a gap in its

service system. In order to show a violation of

subsection 332(c)(7)(B)(i)(II) under Willoth, an

unsuccessful provider applicant must show two things.

First, the provider must show that its facility will fill an

existing significant gap in the ability of remote users to

access the national telephone network. In this context,

the relevant gap, if any, is a gap in the service available

to remote users. Not all gaps in a particular provider’s

15
service will involve a gap in the service available to

remote users. The provider’s showing on this issue will

thus have to include evidence that the area the new

facility will serve is not already served by another

provider.

Second, the provider applicant must also show that the

manner in which it proposes to fill the significant gap

in service is the least intrusive on the values that the

denial sought to serve. This will require a showing that

a good faith effort has been made to identify and

evaluate less intrusive alternatives, e.g., that the

provider has considered less sensitive sites, alternative

system designs, alternative tower designs, placement of

antennae on existing structures, etc.

Id. at 480 (emphasis added) (footnote omitted). We agreed

with the Willoth court that the denial of a variance “will still

be tempered” by subsection B(i)(I) of the TCA which

prohibits unreasonable discrimination. Id. at 480 (quoting

Willoth, 176 F.3d at 643). 

Omnipoint has not shown that the Zoning Board’s denial

of a variance is the result of any unreasonable

discrimination. Instead, it focuses most of its fire on the

issue whether it showed a “significant gap” in service, a

finding required by Penn Township before a disappointed

applicant can successfully claim that the denial of the

application has the effect of prohibiting the provision of

personal wireless services. Omnipoint points to the

testimony of its expert before the Zoning Board, Edmond

Vea, that Omnipoint’s wireless signal strength, as well as

that of other wireless carriers, drops below negative 85

dBm in the area at issue and that when the signal is this

low, wireless service drops below acceptable criteria and

there is a probability that callers will lose their calls or will

not be able to make a call. It also points to the testimony

of another of its experts, Paul Dugan, who testified before

the Magistrate Judge that a signal above negative 85 dBm

is required to provide reliable service. 

Dugan testified that, in conducting the tests on which

Omnipoint relied, he linked eight cellular phones to a

laptop computer and measured the signal strength and

16
performance of the eight cellular services in Easttown

Township. A car was driven through the Township, the

computer initiated calls and Dugan collected the data.

Dugan concluded that a coverage hole exists for all

licensees near Omnipoint’s proposed communication facility

because the carriers do not have sufficient signal strength

or negative 85 dBm. 

The Magistrate Judge found several flaws in Dugan’s

assessment. He explained that Dugan did not identify any

regulatory standard requiring negative 85 dBm as the

minimum signal strength, and that he did not establish a

correlation between the negative 85 dBm standard and the

actual ability of users to access the national telephone

network. Rather, Dugan’s own charts reflected that most of

the calls were initiated successfully even when the signal

strength was below negative 85 dBm. Although Dugan

explained that he would expect to lose calls if he drove for

an extended period of time, the Magistrate Judge noted that

the burden is on Omnipoint to establish a significant gap.

The Magistrate Judge further found that Dugan’s test

results establish that there is reliable cellular service.

Dugan testified that each of the eight phones made about

80 calls for a total of 640 calls. The seven service providers

other than Omnipoint had 10 dropped calls and only one

instance of no service. The Magistrate Judge calculated that

of the 560 calls made using the other providers’ services,

only 11 or 1.96% experienced service problems. Omnipoint

had 11 dropped calls and 13 instances of no service, or

service problems 30% of the time. The Magistrate Judge

concluded that only Omnipoint was incapable of providing

reliable service to its customers and that the Penn

Township test is not satisfied because “ ‘[i]t is necessary for

the provider to show more than that it was denied an

opportunity to fill a gap in its service system.’ ” Omnipoint

Comm. Enter. v. Zoning Hearing Bd., 189 F. Supp. 2d 258,

265 (E.D. Pa. 2002) (quoting Penn Township, 196 F.3d at

480). The Magistrate Judge therefore concluded that where

the drive test data does not support the expert opinion that

weak signal strength results in unreliable wireless service,

Omnipoint has not met its burden of establishing a

significant gap in coverage. 

17
Omnipoint argues in its reply brief that the Magistrate

Judge erred in measuring the gap in service by evaluating

the coverage of the seven other providers without including

Omnipoint in its calculation. Omnipoint contends that

under Penn Township, the Magistrate Judge should have

looked at all of the providers in the aggregate, and if he had

he would have determined that the call failure rate is

approximately 5.4% instead of 1.96%, which is sufficient to

establish a significant gap.15 This is the principal point of

difference between the majority and Judge Rosenn. 

Penn Township requires a provider to show that “the area

the new facility will serve is not already served by another

provider.” 196 F.3d at 480. Here, there are seven other

cellular services provided in the area at issue. If we were to

accept Omnipoint’s argument, we would make Penn

Township’s requirement meaningless. 

This conclusion is consistent with our earlier opinion in

Nextel West Corp. v. Unity Township, 282 F.3d 257 (3d Cir.

2002), where Nextel claimed that the zoning ordinance of

the defendant township had the effect of prohibiting

communications towers in violation of the TCA.16 We

reaffirmed the Penn Township test and explained that the

first prong (that the provider must show that its facility will

fill an existing significant gap in the service available to

remote users) requires “a gap from a user’s perspective,

rather than a particular provider’s perspective.” Nextel West,

282 F.3d at 265. We explained: “[t]hus, 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.’ ” Id. (quoting Penn Township, 196 F.3d at 480).

We remanded so that the district court could determine

whether a gap “existed for all or for Nextel alone.” Id. at

266. 

15. As a general matter, courts of appeals will not consider arguments

raised on appeal for the first time in a reply brief. United States v. Boggi,

74 F.3d 470, 478 (3d Cir. 1996). Even if this argument were properly

before us, it is not persuasive for the reasons set forth in the text. 

16. The district court held that the case was moot but we reversed and

remanded for an adjudication on the merits. Id. at 259. 

18
It is therefore clear that not only our opinion in Penn

Township but also our opinion in Nextel West reject

Omnipoint’s argument that the existence of a significant

gap must include the data from the applicant provider. 

Omnipoint argues that our holding will promote

monopolization and conflict with the pro-competitive

objectives of the TCA (adopting Judge Rosenn’s view

expressed in the original panel opinion). But nothing we say

here suggests that the Zoning Board can deny all

applications after the first. The issue was considered in

Nextel West where we explained that the “effectively

prohibit” and “unreasonably discriminate” provisions of the

TCA work together to promote the expansion of wireless

telecommunications networks. Id. at 264 n.6. We stated,

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. 

Id. The area at issue in this case is already served by seven

other providers so there is no basis for concern about

monopolization. 

Finally, in its Answer to the Petition for Rehearing,

Omnipoint suggests that if we find that our decision in

Penn Township would direct a decision contrary to that

which it seeks, we should seek en banc review and

explicitly overrule our Penn Township decision. Judge

Rosenn has already explained that we are bound by our

earlier opinions. Moreover, as we have just noted, it is not

only Penn Township, but also Nextel West that informs our

decision. Even if we were free to reconsider our earlier

decisions, we would not change them.17 We do not read

17. It is of some interest that the decision in Second Generation Props. v.

Town of Pelham, 313 F.3d 620 (1st Cir. 2002), on which the dissent

relies, expressed its disagreement with the decision in Penn Township

and, as does the dissent, looked to qualitative aspects of competitive

service to show a significant gap. However, Omnipoint did not produce

evidence of qualitative shortcomings, if any, in the competitive service,

and limited itself to evidence as to the quantity of calls. 

19
those decisions to authorize the township zoning boards to

deny any application once the area is already served by

another provider, which is Omnipoint’s restatement of the

holding. Instead, we merely hold that a fact-finder

determining the existence of a significant gap should

examine whether other providers already serve the area.

The fact that one applicant may have coverage problems is

not determinative of whether there is a significant gap. 

We conclude that the Magistrate Judge properly applied

Penn Township and did not err in rejecting Omnipoint’s

argument that the Township zoning ordinance has “the

effect of prohibiting the provision of personal wireless

services” in violation of the TCA. 

VII.

Accordingly, we will affirm the order of the Magistrate

Judge.

20
Rosenn, Circuit Judge, dissenting: 

I believe that the majority decision in this case thwarts

the policies and purposes of the Federal

Telecommunications Act of 1996 (TCA). I fear that it will

impede the inevitable progress of personal wireless services.

I am, therefore, constrained to dissent. 

As the majority points out, Congress had two sets of

priorities in enacting the amended Telecommunications Act

in 1996.1 Congress sought to create a “pro-competitive, deregulatory 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. At the

same time, Congress attempted to balance this goal against

the legitimate concerns of state and local governments in

regulating the siting of wireless facilities. H.R. Conf. Rep.

No. 104-204, at 94-95 (1995), reprinted in 1996

U.S.C.C.A.N. 61. 

With respect to personal wireless service facilities,

Congress limited state and local zoning authority to some

degree. When regulating the placement, construction, and

modification of personal wireless service facilities, state and

local governments: (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.

§ 332(c)(7)(B)(i). The scope of the latter limitation, known as

the “prohibition of service” clause, is the genesis of the

difference of opinion here. 

We have previously considered the scope of the

prohibition of service clause. APT Pittsburgh Ltd. P’ship v.

1. Our disagreement today is precipitated in part by the notoriously

opaque wording of the TCA. See AT & T v. Iowa Utils. Bd., 525 U.S. 366,

397 (1999) (“It would be a gross understatement to say that the

Telecommunications Act of 1996 is not a model of clarity. It is in many

important respects a model of ambiguity or indeed even selfcontradiction.”). In light of this ambiguity, we look to congressional

history and subsequent caselaw to guide us. 

21
Penn Township, Butler County, 196 F.3d 469 (3d Cir. 1999),

established a test to determine if the decision of a local

zoning authority has “the effect of prohibiting the provision

of personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II).

A service provider must first “show that its facility will fill

an existing significant gap in the ability of remote users to

access the national telephone network.” Penn Township,

196 F.3d at 480.2 The question is what services are

available to the remote users of all service providers in the

specific area where the challenging provider asserts that

there is a significant gap. A gap is a gap in the service

offered to remote wireless users by the existing providers. 

There is no dispute that the gap must be from the

users’ perspective, rather than from a particular

provider’s perspective. See Nextel W. Corp. v. Unity

Township, 282 F.3d 257, 265 (3d Cir. 2002). Omnipoint

cannot simply point to the gap in the service it provides

to establish a prohibition of service claim under 47

U.S.C. § 332(c)(7)(B)(i)(II). It must show that the

telecommunications needs of users in the community as a

whole are not being adequately served. 

In my view, the proper test for determining whether there

is a significant gap is to look at all wireless telephone users,

including the plaintiff ’s customers. Instead, the Magistrate

Judge (MJ) looked only at non-Omnipoint users and found

that non-Omnipoint users experienced problems only

1.96% of the time in Easttown Township. See 189 F. Supp.

2d at 265. Based on this finding, the MJ concluded that

Omnipoint had failed to carry its burden of proving a

significant gap. I believe that the relevant figure in the Penn

Township analysis is the aggregate, including Omnipoint

users and including calls outside Easttown Township, but

within each provider’s Wireless Communication Facility’s

coverage area. Under this standard, the MJ’s 1.96% figure

understates the actual call failure rate. Omnipoint places

the number at approximately 5.5%. If this figure is correct,

2. In the second prong of the prohibition of service test, the provider

challenging the zoning decision must also show that its proposal was the

least intrusive on the values the denial sought to serve. See Penn

Township, 196 F.3d 480. 

22
Omnipoint may be able to carry its burden of showing a

significant gap in service. Cf. Cellular Tel. Co. v. Zoning Bd.

of Adjustment of Harrington Park, 90 F. Supp. 2d 557, 565

(D. N.J. 2000) (holding that a call failure rate of five to

seven percent is a significant gap).3

The difference between the majority and me hinges on

what it means to establish a significant gap from the users’

perspective. In my view, the relevant figure to be analyzed

in determining whether there is a significant gap is the

aggregate of all the existing remote users. Since Omnipoint

users are not newcomers, they deserve consideration.4 The

test I propose is to look at all wireless telephone users,

giving existing Omnipoint users no more and no less

consideration than the others. The MJ instead looked only

at non-Omnipoint users and concluded that Omnipoint had

failed to carry its burden of proving a significant gap. In my

view, this approach was flawed because it failed to give any

consideration whatsoever to existing Omnipoint users.5 A

3. I agree with the majority that Omnipoint’s other evidence to

demonstrate a significant gap is not persuasive. Maj. Op. at 16-17. The

MJ held that Omnipoint’s expert witness Dugan had failed to establish

a correlation between the negative 85 dBm standard and users’ actual

ability to access the national telephone network. Dugan’s own tests

revealed that cell phone users in the area below negative 85 dBm

nevertheless were able to make and receive calls using non-Omnipoint

networks. See 189 F. Supp. 2d at 264. I agree with the MJ’s finding that

Omnipoint did not carry its burden of showing that a signal strength of

less than negative 85 dBm alone proves a significant gap. Dugan argued

that the active portion of one of the tests that he conducted understates

the problem with the services’ reliability in that area. Omnipoint was

responsible for correcting this proof problem by more closely replicating

actual driving habits and equipment. See 189 F. Supp. 2d at 264 n.4. 

4. Omnipoint already had an existing license in Easttown Township and

an existing facility in the business district. This is not a case where a

newcomer seeks to have its potential customers calculated as existing

users. On the contrary, Omnipoint is a provider that seeks to expand its

service to existing customers by remedying a significant gap in the

southern area of Easttown Township. 

5. I would reach this question even though Omnipoint raised this

argument for the first time in its Reply Brief. Generally, we do not

consider arguments raised for the first time in a Reply Brief, but we do

23
court should look at the record from the perspective of the

users, not the providers. A customer who has an existing

contract with Omnipoint, who lives in Easttown (or

regularly commutes through the township), and who gets

reception in 2/3 of Easttown but wants to get reception in

the other 1/3 of Easttown logically should be calculated as

an existing customer for the purpose of evaluating whether

there is a significant gap. 

The majority seems to suggest that these users should

only be taken into account if there is no service to which

they could switch that would give them service in the 1/3

of the township Omnipoint service does not reach. In my

opinion, this is an overly restrictive view of existing users,

especially because industry practice often requires

contracts for service for a certain term, thereby significantly

increasing the costs of switching. Additionally, hypothetical

Omnipoint users who were not counted in these

calculations might be forced by this rule to switch to a

provider that did not give them comparable services. By

contrast, Omnipoint or another similar digital provider

could transmit text, emails, and photographs; a cellular

have the discretion to do so in exceptional circumstances. See Hoxworth

v. Blinder, Robinson & Co., 903 F.2d 186, 204-05 n.29 (3d. Cir. 1990).

Here, because I believe the MJ erred in ignoring Omnipoint users in

ascertaining whether there was a significant gap in the Township, I

would consider Omnipoint’s argument to avoid a miscarriage of justice.

Cf. Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1571 (1st Cir.

1994) (Courts of Appeals may consider arguments raised for the first

time in a Reply Brief if the arguments are “so compelling as virtually to

insure the appellant’s success” or if the arguments “must be ruled on to

avoid a miscarriage of justice”); see also Dufrene v. Browning-Ferris, Inc.,

207 F.3d 264, 268 (5th Cir. 2000) (Courts of Appeals may review for

plain error, where the error is “clear” or “obvious” and affects

“substantial rights.”); United States v. Wilson, 962 F.2d 621, 627 (7th

Cir. 1992) (Courts of Appeals may consider an argument raised for the

first time in a Reply Brief when an issue is serious and was overlooked

by all concerned). In this case, the forfeited argument affects the

fairness, integrity, and public reputation of the judicial proceedings. Cf.

Dufrene, 207 F.3d at 268. On remand, I would give Easttown Township

adequate opportunity to respond to the factual question of whether

Omnipoint can show a significant gap under the correct legal standard.

24
provider can only transmit voice. Thus, denying Omnipoint

users consideration in determining whether there is a

significant gap is a harsh and regressive result, one that I

do not believe Congress envisioned. 

As the First Circuit Court of Appeals explained in Second

Generation Props. v. Town of Pelham, 313 F.3d 620 (1st Cir.

2002):

Such a rule . . . does not further the interests of the

individual consumer. . . . [I]t is of little comfort to the

customer who uses AT&T Wireless . . . who cannot get

service along the significant geographic gap . . . that a

Cingular Wireless customer does get some service in

that gap. Of course, that AT&T customer could switch

to Cingular Wireless. But were the rule adopted, the

same customer might well find that she has a

significant gap in coverage a few towns over, where

AT&T Wireless, her former provider, offers service but

Cingular Wireless does not. The result would be a crazy

patchwork quilt of intermittent coverage. That quilt

might have the effect of driving the industry toward a

single carrier. When Congress enacted legislation to

promote the construction of a nationwide cellular

network, such a consequence was not, we think, the

intended result. . . . 

Id. at 633-34. 

I also differ from the majority as to the meaning of a key

statement in Penn Township, which states that proof of a

relevant gap in service requires a provider “to include

evidence that the area the new facility will serve is not

already served by another provider.” Penn Township, 196

F.3d at 480. The difficulty is how to interpret this

statement in light of the preceding inconsistent statement

that “the provider must show that its facility will fill an

existing significant gap in the ability of remote users to

access the national telephone network.” Id. In other words,

what happens when one provider already provides a service

in part of a township, but many of the township’s existing

resident users are unable to access the national network in

that part of the township? In this case, there is a significant

gap in an area of the township when all existing users are

25
taken into account. However, a challenging provider cannot

show that “the area the new facility will serve is not already

served by another provider,” even though the other provider

has inferior functional services.6

The majority’s interpretation of Penn Township is at odds

with Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630 (2d Cir.

1999), a case Penn Township referred to as “the most

thoughtful discussion” of the prohibition of service clause.

Penn Township, 196 F.3d at 479. The Willoth court

described as “untenable” the proposition that “once

personal wireless servers are available somewhere within

the jurisdiction of a state or local government . . . the state

or local government could deny any further application with

impunity.” Willoth, 176 F.3d at 641. 

There is, therefore, tension within Penn Township over

what to do with a circumstance in which one user serves

part of a township and other existing providers seek to

extend their services to that part of the township. On the

one hand, Penn Township states without qualification that

proof of a relevant gap in service requires a provider to

include evidence that the area the new facility will serve is

not already served by another provider. On the other hand,

Penn Township refers us to the Willoth opinion which states

that it is untenable to think that once personal wireless

servers are available somewhere within a township, the

state or local government could deny any further

applications with impunity. The only way to resolve this

tension within Penn Township that is consistent with

congressional intent is to say that the challenger must

show that there is a “significant gap” in that part of the

township. If there is a significant gap, then the area the

new facility will serve is not already adequately served by

another provider. Cf. Willoth, 176 F.3d at 643 (“. . . once an

area is sufficiently serviced by a wireless service provider,

the right to deny applications becomes broader . . .”)

6. I am also concerned that today’s interpretation of the prohibition of

service clause could be applied in other cases in a way that would create

a monopoly and hinder Congress’ goal of establishing a pro-competitive,

de-regulatory national policy framework that opens all

telecommunications markets to competition. 

26
(emphasis added); Second Generation, 313 F.3d at 633 n.13

(“[Willoth’s] stress on adequate coverage should logically

mean that the circuit would oppose an ‘any coverage equals

no gap’ rule”). 

In my view, Penn Township did not intend to foreclose

proof of a significant gap in service because of the mere

presence of one or more telecommunication providers in the

jurisdiction.7 Penn Township must be read to mean

providers with equal technological services.8 I believe my

approach is also consistent with the approach taken in

Second Generation by the First Circuit Court of Appeals, the

only other circuit to address this question. In a cogently

argued opinion, the Second Generation court rejected the

rule the majority adopts today, i.e., that coverage by any

provider precludes all statutory prohibition of service

claims. See Second Generation, 313 F.3d at 632-635.

Moreover, Second Generation convincingly interprets Willoth

to reject the majority’s rule as well. See id. at 632-33 n.13.

The majority points out that in this case there are seven

other cellular providers in Easttown Township. See Maj.

Op. at 18. However, the number of service providers already

in an area is less important in determining whether there

is a gap than the percentage of existing users who cannot

connect with the national network. The real question is

7. It should be noted that the Penn Township opinion did not have a

developed record that necessitated clarification of these questions of

proof. 

8. We have previously addressed the question of functional equivalence

in the context of the unreasonable discrimination prong of 47 U.S.C.

§ 332(c)(7)(B)(i). In Nextel, we explained that “[w]e 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.” Nextel, 282 F.3d at 266-67 n.13. Digital phones

can transmit voice, email, text, and photographs. Cellular phones can

only transmit voice. In my view, this distinction goes beyond “technical

particularities.” Rather, it is a functional distinction. 

27
whether there is a gap from the users’ perspective because

of the providers’ limitations of the existing technological

facilities. See Nextel, 282 F.3d at 265. In this case, it does

not matter how many competitors Omnipoint had. What

matters is that a significant percentage of all existing users

are unable to access the national network because of the

shortcomings of the existing providers’ facilities. 

The majority approach today threatens Congress’ goal of

promoting the rapid acceleration of private sector

deployment of advanced telecommunication and

information technologies to all Americans. The existence of

older, less functional cellular networks should not be

permitted to impede the development of new, digital

technologies like PCS and undermine competition in the

telecommunications industry. The majority opinion will

effectively impede the development of new digital

technologies that have a more limited range but superior

capabilities.9

9. Imagine the following hypothetical scenario. In a certain township,

there are four providers of wireless service. Each provider has 100

existing users, for a total of 400 users. In the southern part of the

township, Providers B, C, and D have adequate cellular service because

their towers in the center of the township have broader service areas.

Provider A also has a tower in the center of the township, but it is

digital, and therefore extends less far but provides more advanced

capabilities such as text messaging, digital transmission of photos, and

email. Provider A’s customers get service in three-quarters of the

township (and elsewhere across the country). 

The question is whether there is a significant gap in the southern part

of the township. Of the 400 existing wireless customers in the township,

100 of them cannot get service and 300 can. Under the majority’s

approach, the calculation only includes those 300 and there is no

significant gap. Also, the majority holds that Provider A and/or its

customers could not bring a prohibition of service claim even if there

were a significant gap, because Providers B, C, and D already provide

service, although not of equal function. 

Under my view, in contrast, the calculation includes all 400 users and

therefore there is a significant gap in the southern part of the township

because 25% of existing users in the township cannot access the

network. In my opinion, Provider A and/or its customers can show a

significant gap and assert a prohibition claim. 

28
I, therefore, respectfully dissent from the sur rehearing

portion of today’s opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

Now imagine that because digital/PCS service is more advanced and

popular, Provider A earns 10,000 new customers and the other three do

not earn any additional customers because their technology is

antiquated. I submit that under this scenario, the majority’s holding

today would undermine clear congressional policy. 

29