                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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
                             2


                      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
                              3


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
                                     4


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.
                                     5


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.
                                     6


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.
                                     7


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).
                                   8


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.”).
                                   9


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.
                                  10


   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 cross-
appeal 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.
                             11


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
                                   12


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.
                              13


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
                              14


    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
                              15


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
                               16


    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
                              17


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.
                                     18


   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.
                                    19


  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.
                           20


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.
                                  21


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, 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. 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 self-
contradiction.”). In light of this ambiguity, we look to congressional
history and subsequent caselaw to guide us.
                                  22


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.
                                   23


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
                                    24


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.
                              25


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
                                   26


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.
                                    27


(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.
                                   28


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.
                                 29


  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.
