282 F.3d 257 (3rd Cir. 2002), 01-2030, Nextel West Corp. v. Unity Township

Docket Nº:01-2030.
Citation:282 F.3d 257
Party Name: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.
Case Date:March 05, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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282 F.3d 257 (3rd Cir. 2002)

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.

No. 01-2030.

United States Court of Appeals, Third Circuit

March 5, 2002

Argued Oct. 18, 2001

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[Copyrighted Material Omitted]

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Clifford B. Levine (Argued), Alice B. Mitinger, Thorp Reed & Armstrong, LLP, Pittsburgh, PA, for Appellant.

Joseph J. Bosick, Jeanette H. Ho (Argued), Pietragallo, Bosick & Gordon, Pittsburgh, PA, for Appellee.

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

OPINION

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. § 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. § 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.

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-

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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. § 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 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 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

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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 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...

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