                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-2002

Nextel West Corp v. Unity
Precedential or Non-Precedential:

Docket 1-2030




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Recommended Citation
"Nextel West Corp v. Unity" (2002). 2002 Decisions. Paper 152.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/152


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<!TOF>
PRECEDENTIAL

       Filed March 5, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2030

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

v.

UNITY TOWNSHIP, WESTMORELAND COUNTY,
PENNSYLVANIA, a Political Subdivision of the
Commonwealth of Pennsylvania; THE ZONING HEARING
BOARD OF UNITY TOWNSHIP

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

ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT
OF PENNSYLVANIA

(Dist. Court No. 98-CV-1258)
District Court Judge: Honorable Donald E. Ziegler

Argued: October 18, 2001

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

(Filed: March 5, 2002)
       CLIFFORD B. LEVINE (Argued)
       ALICE B. MITINGER
       Thorp Reed & Armstrong, LLP
       One Oxford Centre
       301 Grant Street, 14th Floor
       Pittsburgh, PA 15219

        Counsel for Appellant

       JOSEPH J. BOSICK
       JEANETTE H. HO (Argued)
       Pietragallo, Bosick & Gordon
       One Oxford Centre
       301 Grant Street, 38th Floor
       Pittsburgh, PA 15219

        Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Nextel West Corporation ("Nextel"), a wireless
telecommunications company, has attempted to gain
permission from the defendants, Unity Township
("Township") and its Zoning Hearing Board ("ZHB"), to build
a 250-foot radio tower on private property in the Township,
which is located southeast of Pittsburgh. On appeal to this
Court, Nextel argues that the Township violated the federal
Telecommunications Act of 1996 ("TCA"), see 47 U.S.C.
S 332(c)(7) (2000), in two ways: (1) its zoning ordinance has
the "effect of prohibiting" all wireless telecommunications
towers in the Township, and (2) the Township's disparate
treatment of Nextel and a competitor constituted
"unreasonable discrimination" under the TCA. 47 U.S.C. S
332(c)(7)(B)(i). The District Court held that the case was
mooted by an amendment of the original zoning ordinance
and therefore granted the Township's motion for summary
judgement on all claims. Because we hold that this case is
not moot, we reverse and remand for adjudication of the
merits of Nextel's two TCA claims.

                                2
I.

To create a wireless network that provides uninterrupted
cell phone service for a given geographical region, a
telecommunications company must stitch together a
patchwork of transmission cells. An antenna is located in
the approximate center of a cell and the antenna transmits
wireless signals to and from cell phone users in that cell.
Because an antenna transmits signals on a line-of-sight
basis, it is typically mounted on a tower or other tall
structure. The perimeter of each cell is shaped by the
topography surrounding the antenna. Where the terrain is
flat, a cell is circular and several miles in diameter. But the
hilly terrain of western Pennsylvania distorts the shape and
shrinks the size of a cell. The gaps these distortions create
complicate the process of stitching together cells to blanket
the targeted region.

Because each wireless company is licensed by the
Federal Communications Commission ("FCC") to use a
different radio frequency, and because different companies
use different transmission technologies, each wireless
provider must deploy its own network of antennae, spaced
at intervals so that their cells interlock. Providers usually
prefer to mount an antenna on a existing building or
telecommunications tower. When no suitable buildings or
towers are located in the area where an antennae is
needed, a company must build a new tower to provide
wireless service in that area. For a wireless provider, the
absence of coverage over a high-use area (e.g. , a population
cluster or major road) creates legal and commercial
problems. In order to retain its FCC license for a region, a
licensee must achieve quality coverage (defined by the
industry as the absence of "dropped" calls) for a certain
percentage of the region's population within a certain
number of years after the license was granted; if the
licensee fails to do so, it will forfeit its entire license. See 47
C.F.R. S 90.685(d) (2002). In addition, the ability to provide
uninterrupted coverage in high-use areas is considered
essential for a wireless company to remain competitive in
that region.

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

                               3
a segment of U.S. Route 30, Unity's only major highway.1 In
that area, there were no towers or other tall structures on
which Nextel could co-locate a "viable" antenna, i.e., an
antenna that would cover Nextel's gap along Route 30.
Nextel therefore undertook a thorough search for a location
where it could place a viable tower.

The Township's original ordinance permitted
telecommunications towers, inaptly categorized as"utility
substations," only in manufacturing zones, and it limited
these towers to 75 feet in height, well below the industry
average in that region.2 See App. at 1110. The parties
agreed that no tower built in any of the manufacturing
districts would be viable.3 Instead, Nextel identified a
nearby 38-acre farm where a viable tower could be located.
The farm site was in a residential zoning district, just
beyond the edge of a manufacturing district. The site was
near Route 30 and would adequately cover the gap.
Moreover, it did not appear that this location would present
any aviation problem.

Nextel applied to the ZHB for a variance to locate a tower
on the farm site. In July 1998, the ZHB denied the
variance. Nextel also filed an exclusionary challenge with
the ZHB attacking the ordinance's validity under the TCA
and state law. Nextel contended that the ordinance
effectively prohibited wireless telecommunications facilities
in the Township. When the ZHB failed to respond, Nextel's
exclusionary challenge was deemed denied. In September
1998, days after Nextel's exclusionary challenge was
denied, the Township settled a lawsuit filed by Sprint, a
_________________________________________________________________

1. A gap in service, i.e., an area not covered by wireless signals,
results
in dropped calls as callers enter the uncovered area.

2. The average height of new cell towers in western Pennsylvania region
is allegedly 100-150 feet. App. at 1059, 1064.

3. Most districts were too close to the airport. Any tower in the
airport's
vicinity would require approval from the Federal Aviation Administration
("FAA"), which was very unlikely, considering the height the tower would
need to be to cover the service gap. See App. at 498-99. The remainder
of the manufacturing districts were veiled from U.S. Route 30 by hills,
and thus transmissions from a tower there would be topographically
blocked.

                               4
competitor of Nextel, after a state court reversed the ZHB's
denial of Sprint's variance. See Sprint Spectrum v. Unity
Township, 80 Westmoreland L.J. 53 (Pa. Ct. Common Pleas
1998). Sprint had sought to build a cell tower in a
manufacturing district to cover a service gap in its network,
but the proposed height of the tower (250 feet) far exceeded
the ordinance's limit. In accordance with the settlement
agreement, Sprint withdrew its exclusionary challenge
against the ordinance, and the Township issued a variance
that allowed Sprint to build its 250-foot tower.

Nextel timely filed two TCA actions based on these two
denials from the ZHB, and the District Court consolidated
the two actions. While this litigation was pending before the
District Court, the Township amended its original
ordinance in February 1999 in three ways. First, the
amended ordinance allowed wireless telecommunications
towers in two additional zoning districts (agricultural and
conservation, but still not residential). Second, it permitted
towers as a "special exception" if the site in question
satisfied certain criteria. See App. at 1201-06. Third, it
raised the maximum height of towers in manufacturing
districts to 180 feet and in agricultural and conservation
districts to 150 feet (plus 50 feet more if the setback was
sufficient). Nextel argues, however, that the criteria to
qualify a tower site for a special exception are so
burdensome and the additional districts so remote from
Route 30 that, in actuality, Nextel's ability to obtain
approval for a viable tower was effectively unaltered by the
amendment.

After the amendment, the parties filed cross-motions for
summary judgment. Nextel argued that the summary
judgment record showed that (1) the original ordinance was
impermissibly exclusionary under state law, (2) the original
ordinance violated the federal TCA by effectively prohibiting
wireless telecommunications services, and (3) the Township
violated the TCA by unreasonably discriminating in favor of
Sprint. The District Court granted summary judgment to
the Township. It held that Nextel's claims under the TCA
were mooted by the 1999 amendment of the ordinance.
Absent any allegation of diversity jurisdiction, the District
Court found it had no supplemental jurisdiction over the

                               5
pendent state law claims and dismissed them without
prejudice.

II.

This appeal presents three primary issues: (1) whether
the 1999 amendment to the ordinance renders Nextel's two
TCA claims either moot or unripe, (2) whether the
ordinance has the "effect of prohibiting" wireless facilities
and thus violates the TCA, and (3) whether the Township
violated the TCA by "unreasonably discriminat[ing]" against
Nextel.4 Nextel requests an injunction directing the
Township to permit Nextel to build a 250-foot tower on the
farm site. The District Court's opinion addressed only the
first issue (mootness) and found it dispositive. We hold that
the 1999 amendment to the Township's ordinance did not
moot either of Nextel's two claims under the TCA. We
therefore remand the case to the District Court to
adjudicate the merits of Nextel's two TCA claims and any
state law claims over which supplemental jurisdiction is
appropriate.

A.

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

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

       The regulation of the placement, construction, and modification of
       personal wireless service facilities by any State or local
government
       or instrumentality thereof -- (I) shall not unreasonably
discriminate
       among providers of functionally equivalent services; and (II) shall
not
       prohibit or have the effect of prohibiting the provision of
personal
       wireless services.

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

                               6
amended after the litigation has begun, the amendment
may or may not moot the claim, depending on the impact
of the amendment.

On the one hand, if an amendment removes those
features in the statute being challenged by the claim, any
claim for injunctive relief "`becomes moot as to those
features."' Khodara Envtl., Inc. v. Beckman , 237 F.3d 186,
194 (3d Cir. 2001) (holding that facial constitutional
challenges -- on equal protection and other grounds --
were mooted by an amendment that significantly broadened
the statute's scope and thus alleviated these facial claims)
(quoting Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520
(11th Cir. 1992); see also Diffenderfer v. Central Baptist
Church, 404 U.S. 412, 414-15 (1972) (holding that a facial
challenge was mooted by an amendment that substantially
altered the objectionable statutory provision). Similarly, if
the amendment provides sufficient relief to the plaintiff, the
claim becomes moot. See U.S. Dept. of Treasury v. Galioto,
477 U.S. 556, 559-60 (1986) (holding that an amendment
that gave plaintiffs a new administrative remedy mooted
constitutional challenges regarding equal protection and
irrebuttable presumptions); Black United Fund of New
Jersey, Inc. v. Kean, 763 F.2d 156, 160-61 (3d Cir. 1985)
(holding plaintiff's claims were mooted by an amendment
because the "raison d'etre for the injunction no longer
exists," and noting that the amendment "will give plaintiff
substantially the relief it sought in the district court").

On the other hand, an amendment does not moot the
claim if the updated statute differs only insignificantly from
the original. See Northeastern Florida Chapter of the
Associated Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656, 662 (1993) (rejecting a misinterpretation of
the holding in City of Mesquite v. Aladdin's Castle, Inc., 455
U.S. 283 (1982), that would permit "a defendant[to] moot
a case by repealing the challenged statute and replacing it
with one that differs only in some insignificant respect"). A
claim is not mooted by the amendment if the "gravamen of
petitioner's complaint" remains because, although the new
ordinance "may disadvantage [plaintiffs] to a lesser degree
than the old one," still "it disadvantages them in the same
fundamental way." Id.; see also Coalition for the Abolition of

                               7
Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301,
1313-15 (11th Cir. 2000) (holding the challenged provisions
of the old ordinance "have not been sufficiently altered [by
the amendment] so as to eliminate the issues raised" and
that the violations alleged under the old ordinance could be
reasonably expected to continue under the new ordinance);
Naturist Soc'y, 958 F.2d at 1520 ("Where a superceding
statute leaves objectionable features of the prior law
substantially undisturbed, the case is not moot. . .. To the
extent that those [challenged] features remain in place, and
changes in the law have not so fundamentally altered the
statutory framework as to render the original controversy a
mere abstraction, the case is not moot.").

In Khodara, we held that, although facial challenges were
mooted by the amendment, the as-applied challenges were
not moot because relief was still available for these claims,
which the amendment had not redressed.5 See Khodara,
237 F.3d at 195-96. In Rosetti v. Shalala, 12 F.3d 1216 (3d
Cir. 1993), we held the case was not mooted by the
promulgation of new regulations because they gave
plaintiffs "only some, not all, of the relief they sought." 12
F.3d at 1233. Although the plaintiffs had requested relief in
the form of new regulations, they had also sought a
_________________________________________________________________

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

We reject the Township's mistaken argument that seizes on the
existence of a claim for damages as the litmus test for mootness. The
Township's contention -- because Nextel seeks only injunctive relief and
not damages, the 1999 amendment moots Nextel's claims --
misinterprets our reasoning in Khodara. It was the continuing
availability of relief, unredressed by the amendment, that kept the
controversy alive in Khodara. Similarly, the relief requested by Nextel --
declaring the ordinance invalid and/or enjoin the Township to permit
Nextel to build its farm-site tower -- remain meaningful and available
after the 1999 amendment.

                               8
separate form of injunctive relief that was unaddressed and
was therefore not mooted by these new regulations. See id.

1. Claim of Prohibitive Effect. Applying this case law to
Nextel's first TCA claim, we hold that the Township's
amendment did not sufficiently alter the ordinance to moot
the question whether Unity's ordinance effectively prohibits
wireless facilities. Even though the amendment did, on its
face, loosen the zoning restrictions on wireless towers, the
controversy over its effect remains alive, and injunctive
relief remains available. According to Nextel, both before
and after the amendment, the ordinance effectively
prohibited Nextel from locating a tower in any viable
location. Nextel argues that the changes introduced by the
amendment -- an increase in height limits, the addition of
two types of zoning districts, and the special exception
procedure -- still provided no feasible location for a tower
that could cover the gap in service. Under the Khodara
analysis, the challenged feature of the original ordinance
(i.e., its allegedly prohibitive effect) was not removed by the
amendment.

In the language of Northeastern Florida Chapter , both
before and after the amendment, "the gravamen" of Nextel's
complaint remained: the allegedly prohibitive effect of the
Township's ordinance still violated the TCA. 508 U.S. at
662. Both before and after amendment, Nextel was
allegedly "disadvantag[ed] in the same fundamental way": it
still cannot place a viable tower anywhere in the Township.
Id. As for the continuing availability of requested relief,
crucial in Rosetti, the amendment in no way redressed
Nextel's request for site-specific, injunctive relief.

In holding that Nextel's TCA claims were moot, the
District Court did not compare the effect of the original
ordinance and the amended ordinance. It did not discuss
whether and to what extent the allegedly prohibitive effect
of the original ordinance had been altered by the
amendment. Instead, the Court reasoned that because the
amendment added something to the ordinance-- namely,
criteria under which towers could be permitted as special
exceptions -- Nextel's claims had become moot. See App. at
19-20. The District Court relied on Burke v. Barnes, 479
U.S. 361, 363 (1987) and Diffenderfer for the proposition

                               9
that a statute's expiration or repeal deprives the plaintiff of
injunctive and declaratory relief. But that rule is
inapplicable here, because the original ordinance was
merely amended. More appropriate for these facts is the
mootness inquiry from Northeastern Florida Chapter and
Khodara, i.e., whether the amendment sufficiently altered
or removed the challenged aspects of the original legislation
to moot the underlying claims.

2. Claim of Unreasonable Discrimination. In addition to its
claim that the Township's ordinance violated the TCA by
effectively prohibiting cell towers, Nextel also claimed that
the defendants violated the TCA by discriminating against
it and in favor of a competitor, Sprint. We hold that this
claim is also not moot. The District Court failed to make a
distinction between Nextel's two separate TCA claims. The
District Court's opinion did not explain how a change in the
text of an ordinance could moot a claim of past
discriminatory conduct.

Nextel seeks a remedy for the Township's decision to
deny its variance request, while granting a similar variance
to Sprint. The variance permitted Sprint to build its tower
in a manner otherwise impermissible under either the
original or amended ordinance. Even if the amendment had
mooted Nextel's first claim by purging the ordinance of its
allegedly prohibitive effect, the amendment in no way
altered Nextel's claim of unreasonably discriminatory
conduct by the Township. This controversy is very much
alive.

B.

Although the District Court did not discuss ripeness, the
appellees have urged us to affirm the decision of the
District Court on the alternative ground that Nextel's claims
are not ripe. We are convinced, however, that Nextel's TCA
claims are ripe for adjudication on the merits by the
District Court. We reject the Township's argument that
Nextel's claims are unripe because Nextel has not yet
applied for a permit or variance under the amended
ordinance. We find the Township's position -- that any
amendment to a zoning ordinance forces an applicant to

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

The Township's position would enable a municipality to
trap telecommunications plaintiffs in a litigation limbo
between mootness and unripeness, frustrating the TCA's
purpose. Under the Township's approach, as long as a
municipality passed an insignificant amendment after each
TCA action was filed, it could block telecommunications
plaintiffs' access to court, even though expedited review in
federal court is the benefit Congress expressly intended to
confer on wireless providers by enacting the TCA. See 47
U.S.C. S 332 (c)(7)(B)(v). The Supreme Court squarely
rejected this theory when discussing mootness in
Northeastern Florida Chapter. See 508 U.S. at 662 (rejecting
a rule that would permit "a defendant [to] moot a case by
repealing the challenged statute and replacing it with one
that differs only in some insignificant respect"). We thus
hold that Nextel's claims are ripe.

C.

On remand, the District Court must weigh the merits of
two TCA claims that require separate analyses but work
together to effectuate the purpose of the statute. 6 First, the
District Court must determine whether the ordinance had
_________________________________________________________________

6. The federal Telecommunications Act of 1996 seeks to create "a 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. It seeks to
balance this goal against the legitimate concerns of state and local
governments in regulating the siting of wireless facilities. See H.R.
Conf.
Rep. No. 104-204, at 94-95 (1995), reprinted in 1996 U.S.C.C.A.N. 61.

Though Nextel makes two separate claims under the TCA, the two
provisions from which these claims derive -- effectively prohibit and
unreasonably discriminate -- work together to promote the expansion of
wireless telecommunications networks by protecting telecommunications
plaintiffs.

The first provision (forbidding ordinances which effectively prohibit
wireless facilities) aims to open up municipalities to wireless providers
generally. The second provision (against unreasonable discrimination)
seeks to ensure that, once the municipality allows the first wireless
provider to enter, the municipality will not unreasonably exclude
subsequent providers who similarly wish to enter and create a
competitive market in telecommunications services.
11
a prohibitive effect on wireless facilities. Second, it must
decide whether the Township unreasonably discriminated
against Nextel.

1. Prohibitive effect. The TCA states that ordinances are
actionable if they "prohibit or have the effect of prohibiting
the provision of personal wireless services." 47 U.S.C. S 332
(c)(7)(B)(i) (2000). The statute does not define what
constitutes prohibitive effect, but case law provides
guidance. We have interpreted the "effect of prohibiting"
clause to include a situation in which a zoning ordinance
causes "significant gaps" in wireless coverage, and we have
suggested that a "significant commuter highway" would
present such a gap. Cellular Tel. Co. v. Ho-ho-kus, 197 F.3d
64, 70 (3d Cir. 1999) (finding the phrase "effect of
prohibiting" to mean "more than simply ensuring that
personal wireless services are available somewhere in the
relevant jurisdiction").

A recent decision by this Court involved facts similar to
those now before us.7 In APT Pittsburgh Ltd. Partnership v.
Penn Township, 196 F.3d 469 (3d Cir. 1999), we adopted a
two-prong test to determine whether an ordinance had the
prohibitive effect that the TCA forbids.8 See 196 F.3d at
480-81. To satisfy the first prong, "the provider must show
that its [proposed] facility will fill an existing significant gap
... in the service available to remote users." Id. at 480. We
defined this prong as requiring a gap from a user's
perspective, rather than a particular provider's perspective.
Thus, this prong focuses on whether any provider is
covering the gap, instead of whether the gap exists only in,
for example, Nextel's service. A provider must "include
evidence that the area the new facility will serve is not
already served by another provider."9 Id. In the present
_________________________________________________________________

7. The wireless provider suffered from a gap in coverage along a hilly
township's major highway corridor. It unsuccessfully sought a variance
to locate a tower in a rural area (zoned residential). A zoning amendment
then restricted wireless telecommunications towers to three
manufacturing districts, none of which were technologically feasible and
available for the provider. See APT Pittsburgh , 196 F.3d at 472.

8. The test is also employed in Sprint Spectrum, L.P. v. Willoth, 176 F.3d
630, 639 (2d Cir. 1999).

9. However, if an applicant is denied a permit to cover an area when
other providers have been approved, this may violate a different

                               12
case, the relevant testimony on this issue is scant and
conclusory, but it suggests that a gap existed for all
providers and not only Nextel.10 In oral argument, counsel
for Nextel asserted that no provider covers this gap but did
not refer to any evidence. On remand, the District Court
should make a factual determination as to whether this
service gap existed for all or for Nextel alone.

The second prong of the prohibitive-effect test in APT
Pittsburgh requires the telecommunications plaintiff to show
"that the manner in which it proposes to fill the significant
gap in service is the least intrusive on the values that
denial sought to serve." Id. The court offered examples of a
good-faith effort to find and evaluate less intrusive
alternatives: consideration of other sites, other system
designs, other tower designs, existing structures, etc. See
id. Whether the farm site is the least intrusive means to fill
the gap in service is a decision for the District Court on
remand. We note that Nextel put forward testimony
suggesting that its proposal is relatively unintrusive.11 The
_________________________________________________________________

provision in the TCA: unreasonable discrimination. Both the Willoth and
APT Pittsburgh courts note that, even if a particular provider's gap is
already serviced by another provider, "the TCA may invalidate the denial
of a variance [to the new entrant] if it has the effect of unreasonably
discriminating between providers." APT Pittsburgh, 196 F.3d at 480 n.8.

10. According to the affidavit of Nextel's expert witness, Mr. Monfredi
(an
outside consultant and engineer) concluded that, after conducting tests
using multiple sites and frequencies, "no licensed provider of wireless
telecommunications services, regardless of the frequency at which it
operates, can provide functional service to the Unity Corridor and to the
Unity Communities if such carrier is required to strictly comply with
either the 1998 Ordinance or the Subsequent [1999] Ordinance." App. at
1379-80.

The Township did not refute this statement with any evidence. Instead,
it objected that Monfredi's tests insufficiently explore possibilities
under
the amendment's increased height allowances.

At minimum, the record shows that not a single cell tower has been
permitted in the Township under the ordinance. The sole tower (Sprint's)
was built pursuant to a variance from limits imposed by the ordinance,
granted only as part of a settlement. See App. at 1188, 1191.

11. Nextel's expert witness stated that "where collocation on existing
structures is not feasible, it is commonplace for municipalities to prefer

                               13
record lacks a direct response from the Township regarding
intrusiveness; instead the Township referred (but did not
commit itself) to an alternative proposal to build two or
three shorter towers.12

2. Unreasonable discrimination. Independent of Nextel's
claim of prohibitive effect, Nextel makes a claim of
unreasonable discrimination under the TCA. The TCA
requires that the "regulation of the placement,
construction, and modification of personal wireless service
facilities by [local governments] ... shall not unreasonably
discriminate among providers of functionally equivalent
services." 47 U.S.C. S 332(c)(7)(B)(i). Another two-prong test
emerges from this provision. See APT Pittsburgh Ltd. P'ship
v. Lower Yoder Township, 111 F. Supp. 2d 664, 674-75
(W.D. Pa. 2000). In this analysis, the first prong asks
whether the relevant providers are "functionally equivalent."
47 U.S.C. S 332(c)(7)(B)(i). If they are, then the second
prong asks whether the governmental body "unreasonably
discriminate[d] among providers." Id. In the instant case,
the record clearly shows that Sprint and Nextel are
functionally equivalent.13 On remand, therefore, the District
Court should examine whether the Township's
discrimination against Nextel and in favor of Sprint was
reasonable.
_________________________________________________________________

the construction of a single tower to multiple towers. This preference
holds even if the single tower must be built to a greater height than
would be necessary with additional sites." App. at 1387-88.

12. Nextel's expert witness testified that the use of multiple sites "has
many limitations that make it impractical." App. at 1382.

13. We think the equivalency of function relates to the
telecommunications services the entity provides, not to the technical
particularities (design, technology, or frequency) of its operations. The
TCA clearly does not force competing wireless providers to adopt
identical technology or design nor does it compel them to fit their
networks of antennae into a uniform, rigid honeycomb of interlocking
cells. Indeed, the FCC's assignment of a different frequency and signal
strength to each licensee renders such uniformity impossible. In this
region, Sprint and Nextel provide the same service-- personal wireless
communications services to remote users -- and therefore are
functionally equivalent.

                                14
To preserve the ability of local governments and zoning
boards to take into account the uniqueness of land, the
TCA "explicitly contemplates that some discrimination ... is
allowed. Any discrimination need only be reasonable." AT&T
Wireless PCS, Inc. v. City Council of Virginia Beach , 155
F.3d 423, 427 (4th Cir. 1998); see also Sprint Spectrum, L.P.
v. Willoth, 176 F.3d 630, 638 (2d Cir. 1999). In a footnote
in APT Pittsburgh, we stated that relief under the TCA's
discrimination provision "will require a showing that the
other provider is similarly situated, i.e., that the`structure,
placement or cumulative impact' of the existing facilities
makes them as or more intrusive than the proposed
facility." 196 F.3d at 480 n.8. Discrimination may be
impermissible where a municipality favors one provider by
permitting it to locate in a particular area at the exclusion
of others, thereby creating unfair competitive advantage.
See Western PCS II, Corp. v. Extraterritorial Zoning Auth.,
957 F. Supp. 1230, 1237-38 (D.N.M. 1997).

The record before us is insufficient to determine
conclusively whether Sprint and Nextel were indeed
similarly situated and whether the Township's
discrimination was unreasonable. Thus far, Nextel has
shown strong similarities between the two situations.
Initially, both Sprint and Nextel had a service gap in the
Township, both proposed to build a 250-foot tower, both
were denied a variance, both appealed the ZHB's denial,
and both filed exclusionary challenges against the
Township. However, after the Court of Common Pleas of
Westmoreland County reversed the denial of Sprint's
variance, the Township decided to settle with Sprint.
Pursuant to the agreement, the Township gave Sprint the
site-specific relief it requested (a variance to build its 250-
foot tower) and Sprint withdrew its exclusionary challenge.
By contrast, Nextel received no variance and no explanation
as to why its exclusionary challenge was denied only days
before the Township settled with Sprint. If, on remand, the
District Court can find no reasonable basis for this
discrimination, then Nextel should prevail on this claim.

III.

For the reasons explained above, the order of the District
Court granting summary judgment in favor of the Township

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is REVERSED and the case is remanded for three fact-
specific determinations: (1) whether the service gap was
suffered by all wireless providers or only Nextel, (2) whether
erecting a tower at the farm site proposed by Nextel was the
least intrusive means for covering the gap in service along
U.S. Route 30, and (3) whether the Township's
discrimination between Nextel and Sprint was
unreasonable. If the District Court finds that no provider
was covering the service gap and that the farm site was the
least intrusive means of covering that gap, or it finds that
the Township's discrimination was unreasonable, then
Nextel is entitled to remedies available under the TCA.

A True Copy:
Teste:

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

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