                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2003

Omnipoint Comm Entr v. Zoning Hearing
Precedential or Non-Precedential: Precedential

Docket 02-2194




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PRECEDENTIAL

       Filed February 12, 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

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 99-cv-2080
Magistrate Judge: The Hon. Jacob P. Hart

Argued: December 19, 2002

Before: SLOVITER, McKEE, and ROSENN, Circuit   Judges.

(Filed: February 12, 2003)

       Paul J. Lawrence, Esq. (Argued)
       Jay Carlson, Esq.
       PRESTON GATES & ELLIS
       701 Fifth Avenue
       Suite 5000
       Seattle, WA 98104-7078




       James C. Dalton, Esq.
       Christopher H. Schubert, Esq.
       RILEY RIPER HOLLIN &
        COLAGRECO, P.C.
       240 Daylesford Plaza
       P.O. Box 568
       Paoli, PA 19301-0568

        Counsel for Appellant

       Andrew D. H. Rau, Esq. (Argued)
       GAWTHROP, GREENWOOD &
        HALSTED
       A Professional Corporation
       119 North High Street
       West Chester, PA 19381-0562

       Paula Tripodi Kaczynski, Esq.
       HOLSTEN & ASSOCIATES
       One Olive Street
       Media, PA 19063-3301
        Counsel for Appellee

OPINION OF THE COURT

ROSENN, Circuit Judge:

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

                                2


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
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. We affirm in part, vacate
in part, and remand to the Magistrate Judge for further
proceedings.

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

                                3


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
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.
_________________________________________________________________

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.

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 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
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. S 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
_________________________________________________________________

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.S 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. S 1983 which Judge Katz denied because
he ruled that the TCA’s remedial scheme was sufficiently comprehensive
to infer Congress’ intent to foreclose S 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. 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. S 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.S 1367(a). See
Omnipoint I, 248 F.3d at 108 n.5.

6. Omnipoint has not cited any Federal Communications 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. S 1291.

                                5


II.

In Penn Township, we established a two-prong 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. S 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. If this burden is met, the provider must still prove
"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." Id.

We now turn to the first prong of that test to determine
whether there is a significant gap in the ability of remote
users to access the national telecommunications network.
We focus, therefore, on the service available to all remote
users of all services in the specific area where Omnipoint
asserts there is a significant gap in reliable service offered
to remote wireless users by the existing providers. There
must be a gap 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). A gap in
the service provided by one provider is not sufficient for a
prohibition of service claim under 47 U.S.C.
S 332(c)(7)(B)(i)(II) if the telecommunications needs of users
in the community as a whole are served.

Regrettably, the MJ misapplied the Penn Township test
here.8 The relevant figure to be analyzed in determining
whether there is a significant gap is a consideration of all
the existing remote users in the southern area of Easttown
Township. Dugan testified: "I know without question that
this area in Southern Easttown Township within the
footprint of the proposed facility is currently lacking
coverage." A consideration of all users must include
existing Omnipoint users at the time of the inquiry.
Omnipoint is not a newcomer: it is already an existing
licensee in Easttown Township. Omnipoint has an existing
_________________________________________________________________

8. We review the Magistrate’s legal conclusions under a plenary
standard. See Warner-Lambert Co. v. BreathAsure, Inc., 204 F.3d 87, 89
n.1 (3d Cir. 1999).

                                6


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, it is a provider who
seeks to expand its service to existing customers by
remedying a significant gap in the southern area of
Easttown Township.

The proper test, therefore, for determining whether there
is a significant gap is to look at all wireless telephone users,
including the plaintiff ’s customers. Instead, the 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 Magistrate Judge erroneously
concluded that Omnipoint had failed to carry its burden of
proving a significant gap.

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
WCF ’s coverage area. Under the proper standard, the MJ’s
1.96% figure understates the actual call failure rate.
Omnipoint places the number at approximately 5.5%. 9
_________________________________________________________________

9. We reach this conclusion 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 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, since the Magistrate Judge erred in ignoring Omnipoint users in
ascertaining whether there was a significant gap in the Township, we will
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. Easttown Township will have adequate
opportunity to respond on remand to the factual question of whether
Omnipoint can show a significant gap under the correct legal standard.

                                7


Thus, 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). The statement in
Penn Township 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," is somewhat puzzling in light of the preceding
statement pertaining to a provider’s proof that its facility
will fill an existing significant gap in the ability of remote
users to access the national telephone network. Standing
alone, evidence that an area "is not already served by
another provider" would seem to prohibit any provider from
serving an area already served by another provider. It
would promote monopolization and thus conflict with the
pro-competitive objectives of the TCA. Because Penn
Township relied heavily on "the most thoughtful discussion
[it] found in the recent opinion" in Sprint Spectrum, L.P. v.
Willoth, 176 F.3d 630 (2d Cir. 1999), we turn to that
opinion for illumination.

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." Id. at 641.
Thus, the court 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. The puzzling Penn Township statement --
evidence that the area served by the new facility"is not
already served by another provider" -- can only refer to an
area without any significant gap in service by an existing
provider.

Any other interpretation effectively would allow the
existence of older, less functional cellular networks to
impede the development of new, digital technologies like
PCS and undermine competition in the telecommunications
industry, thereby impairing Congressional policy. That
policy, as expressed in TCA, seeks to create a "pro-
competitive, de-regulatory national policy framework

                                8


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.

Therefore, this case will be remanded to the Magistrate
Judge for reconsideration under the legal standard set forth
in this opinion.10

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
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 262-63.11 Thus, the MJ’s
finding that the stealth flagpole was the least restrictive
_________________________________________________________________

10. We are not persuaded by other evidence provided by Omnipoint to
show a significant gap. 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. We 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.
11. 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


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).12 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
exclusion exists "where an ordinance permits a use on its
face, but when applied acts to prohibit the use throughout
the municipality." Id.13 The MJ held that Easttown
_________________________________________________________________

12. 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. S 10910.2 (2002).
13. 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.").

                                10
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.
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 . . .").14
_________________________________________________________________

14. Omnipoint argues that Easttown Township cannot circumvent an
otherwise exclusionary zoning ordinance by relying on the availability of

                                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 108.15

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.16 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,
_________________________________________________________________

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.

15. 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.

16. 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.

                                12


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. S 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
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.
S 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).

                                13


In Nextel, we explained that the purpose of the
"unreasonable discrimination" language ofS 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
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
S 332(c)(7)(B)(i)(I) challenge fails.17
_________________________________________________________________

17. 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

                                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
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.

VII.

Accordingly, the Magistrate Judge’s order granting
summary judgment for the ZHB is affirmed except as to its
holding that there is no significant gap in
telecommunications service in Easttown Township. As to
_________________________________________________________________

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.
                                15


this holding, we remand to the Magistrate Judge for further
proceedings consistent with this opinion. Two-thirds of the
costs are taxed against the appellant.

                                16


SLOVITER, Circuit Judge, Concurring:

I have reservations that the majority’s decision
remanding so that evidence of problems faced by
Omnipoint users may be included in the determination
whether there is a significant gap may not be consistent
with our holding in APT Pittsburgh Ltd. v. Penn Township,
196 F.3d 469 (3d Cir. 1999). If every licensee who seeks to
construct a communications tower were able to compel
recalculation of the evidence as to the availability of
wireless communications services to remote users because
its users have a dead spot in communications, the
Township Zoning Boards may receive numerous such
requests for a new study which may entail additional time
and expense. Moreover, the residential areas may be
populated by unsightly towers, however disguised. This
situation was addressed by the Penn Township court as
follows:

       [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
       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.

                                17


Id. at 480 (emphasis added) (footnote omitted).
Omnipoint appears to present precisely the situation
encompassed by the above language in Penn Township.
Moreover, the fact that Omnipoint failed to raise the issue
of the gap calculation in its principal brief and reserved it
for its reply brief when the Township Zoning Board did not
have the opportunity to answer suggests that it was an
afterthought. It is not clear whether this argument as to the
gap calculation was raised before the Magistrate Judge at
some time. It was not raised at the hearing and is not
considered in his comprehensive opinion.

Nonetheless, I concur because it is clear from the
majority’s opinion that on remand the Township Zoning
Board will have the opportunity to challenge Omnipoint’s
calculations. Under the circumstances, I urge the
Magistrate Judge to give the Township ample leeway to do
so.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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