Amicus Curiae Brief — Omnipoint Communications Enterprises, L. P. v. Zoning Hearing Board

IN THE

Supreme Court of the United States

OMNIPOINT COMMUNICATIONS ENTERPRISES, L.P.

Petitioner,

V.

ZONING HEARING BOARD OF EASTTOWN TOWNSHP,

Respondent.

~

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF AMICI CURIAE OF AT&T WIRELESS

SERVICES, INC. AND CELLCO PARTNERSHIP,

D/B/A VERIZON WIRELESS, IN SUPPORT OF

PETITIONER

KENNETH J. WILBUR, ESQUIRE

Counsel of Record

Drinker Biddle & Reath, LLP

500 Campus Drive

Florham Park, NJ 07932-1047

973-360-1100

Counsel for AT&T Wireless

Services, Inc., and Cellco

Partnership, d/b/a Verizon Wireless

1b ff

TABLE OF CONTENTS

PAGE

SP TE FF Re scsi occ ninisupneaceriesansesnnsesststonvens il

EDT Tapa I ABI CURIA co sssicssssesssssieronesoniseniersonnnnies l

SUIS CIF ABA UIIIS S sssiicrssssvesvecsovnassonvsvenicnseansnenven Ps

PITT siitnveeniciniitninnininsiniaiobipiunbebcns 3

A. THE PETITION SHOULD BE GRANTED TO

PROVIDE CLEAR GUIDANCE ON THE EFFECT

OF THE PROHIBITION RESTRICTION .........000.... 5

B. THE STATUTORY AND REGULATORY

FRAMEWORK ANTICIPATES APPLICATION OF

THE PROHIBITION RESTRICTION ON A

PROVIDER-BY-PROVIDER BASIS. ...............08 12

\. THE ONE-PROVIDER RULE HAS THE EFFECT

OF PROMIBITING SERVICES. orccsseesrsersssenveessvnsnes 15

Ce Pe SIE seni nsesceietcneinininmiinenntenninianiconsscumnnninanive 20

TABLE OF AUTHORITIES

CASES PAGE

360 Degrees Communications Co. of Charlottesville v.

Board of Supervisors of Albemarle County,

211 F368 79 Cl Ch, Fee aanees 6

APT Minneapolis, Inc. v. Eau Claire County,

80 F. Supp. 2d 1014 (W.D. Wisc. 1999)... 10

APT Pittsburgh Ltd. vy. Penn Township,

196 F.3b 469 (50 Cae, FI a crenecceniemetiererinemes 8

AT&T Wireless PCS, Inc. v. City Council of Virginia Beach,

155 F.3d 423 (Othe Cae. Fp acistaniwsiscicntrnnevestcasvoones 6

AT&T Wireless PCS, Inc. v. Town of Porter,

203 F. Supp. 2d 985 (N. D. Ind. 2002) ....... 1]

Advanced Mobile Phone Serv., Inc. North-West Tel. Co. &

GTE Mobilenet of Milwaukee, Inc.,

No. 79-318, 1986 WL. 292526

(F.C.C. Jan. 6, TR sna eee 13

Airtouch Cellular v. City of El Cajon,

83 F. Supp. 2d 1158 (S.D. Cal. 2000)............. 10, 18

Bellsouth Mobility, Inc. v. Parish of Plaquemines,

40 F. Supp. 24 372 (ED. Lat. 19GB) cccccsenssecesessseese 1]

il

TABLE OF AUTHORITIES

(continued)

CASES PAGE

In re Cellular Communications Sys., 86 F.C.C.2d 469

(1981) reh’g denied, Advanced Mobile Phone Serv., Inc.

North-West Tel. Co. & GTE Mobilenet of Milwaukee, Inc.,

No. 79-318, 1986 WL. 292526 (F.C.C. Jan. 6, 1986)....... 13

Cellular Tel. Co. v. Zoning Bd. of Adj. of Ho-Ho-Kus,

197 F.3d 64 (3d Cir. 1999)... 4,7, 8,11, 16,17

Independent Wireless One Corp. v. Town of Charlotte,

242 F. Supp. 2d 409 (D. Vt. 2003)............. eee 11

MetroPCS v. San Francisco,

259 F. Supp. 2d 1004 (N.D. Cal. 2003) «0... 10

Nextel Comm. v. City of Cambridge,

246 F. Supp. 2d 118 (D. Mass. 2003) ............ eee 18

Nextel Partners, Inc. v. Town of Amherst,

251 F. Supp. 2d 1187 (W.D.N.Y. 2003)........... 8, 11

Nextel Partners of Upstate N.Y., Inc. v. Town of Canaan,

62 F. Supp. 24 691 (N.D.N.Y. 1999) .........000..00000 11

Omnipoint Comm. Enter. v. Easttown Tp.,

Pe ET CFG CAE, DIS) covcvnssnvernsanesesvscesnsss 9,12

ill

TABLE OF AUTHORITIES

(continued)

CASES PAGE

Omnipoint Comm. Enter. v. Easttown Tp.,

331 FSG SOG (50 Cit, 2IUS) oxsvsssissvsnrerssicvane 9,10, 12

Omnipoint Comm. Enter. vy. Newtown Township,

219 F.3d 240 (3d Cir.), cert. denied, 531 U.S. 985

RIPE :viansystesisnniensnbaionsllesavhinubsabebieatavuedsnaadonts canttiomaeate 15

Second Generation Props., L.P. v. Town of Pelham,

FAs Bie OO CGE CAT. BIO) scicsiessccexrenectvins 8,9, 18

Site Tech Group, Ltd. v. Town of Brookhaven BZA,

140 F. Supp. 2d 255 (E.D.N.Y. 2001)............... 8, 11

Sprint Spectrum, L.P. v. Board of County Commn'rs of

Jefferson County,

59 F. Supp. 2d 1101 (D. Colo. 1999) .........000.+0000:. 11 -

Sprint Spectrum, L.P. v. Willoth,

176 FSO GSO (20 Cle. TIFF) sissessncsssosnnssevsvevacvcces 7,8

Town of Amherst, N.H. v. Omnipoint Communications

Enter., Inc.,

FD We O CROE GR, FI oercsviacescsinnsammncinionrnane 7,48

Voicestream Minneapolis, Inc. v. St. Croix County,

Pe FOG GO 1W LFA, DOG Biiivinrissavvinvesinevierssoserseeee fs

iv

TABLE OF AUTHORITIES

(continued)

PAGE

STATUTES

47 U.S.C. § 161 (a)(2).......... cikcshdie vei ehdapiednaaeimmmaieneias 4

GF LER. 5 oe OOP sitcaiennrcinc pean 13, 14

Si WBA. S Fe OR iassisincces ieee a 15

Si Si. & oe Cities 1, 4,5, 13, 14

BF SBR: EF Cen coon reset ee 14

47 WBA, § S02 CCC invsccnccieasstiaccereaesameeas 5

Si UGA. § 52 Ge FD vsinestnstsicinerecniecetppeneetonns a

$7 U.K. & 35k CEI Fee tt hs xsonssssccntscncnceavenuneemenneee 5

47 VBA. § SSE CORT i ecsnivccvetseccuarancecatolaeaees 5

AT UAL. § 258 GEA ee ixccicersstcinlaeretnal 4

REGULATIONS

WF EP Bs & BRAD sssiinrecsectninetnasllaceaniesines nema 15

SESSION LAWS

Telecommunications Act of 1996, Pub. L. No. 104-104, 110

A. DO ssxcsssansceertetinnitnansnasieaiaamian nn 4, 16

Wireless Communications and Public Safety Act of 1999,

Pub. L. No. 106-81, LES GME. 1G occssisesinsdsecncessavmeverenosns 15

Vv

TABLE OF AUTHORITIES

(continued)

PAGE

CONGRESSIONAL AND REGULATORY REPORTS

Eighth Annual Report and Analysis of Competitive Market

Conditions with Respect to Commercial Service

PACA. Foi isiccnstshinncennteeenton eee 3

First Annual Report and Analysis of Competitive Market

Conditions with Respect to Commercial Service

FAL, GES0T vctsnioeoran aaa 3, 16

DALE HATFIELD, A REPORT ON TECHNICAL AND

OPERATIONAL ISSUES IMPACTING THE PROVISION OF

WIRELESS ENHANCED 911 SERVICES 15 (2002), available at

http://gullfoss2.fec.gov/prod/ecfs/retrieve.cgi?native or pdf

=pdf&id document=65 13296239. oo... cccessssceceeceeeceeeeees 15

H.R. No. 104-204, reprinted in 1996 Code Cong. & Admin.

PROWE,, BBG .is.rssnvisrserinenagiemsnsevenenrhennene leanne +

H.R. Rep. 111, 103d Cong. 1“ Sess. 261-62 (1993)......... 15

In re Revision of Rules to Ensure Compatibility With E911

ECS, Memorandum Opinion and Order,

12 FCCC. 22666 GO ctitininancincnnian 15

In re Revision of Rules to Ensure Compatibility With E911

ECS, Second Report and Order,

14 FCC. 1G. S56 CTR poscsssevecessicessssatens ay See

vi

INTEREST OF AMICI CURIAE

Amici curiae AT&T Wireless Services, Inc. and

Cellco Partnership, d/b/a Verizon Wireless, through their

subsidiaries and affiliates provide persona! wireless services

to approximately 60 million subscribers. The Courts of

Appeals currently disagree on the proper interpretation of the

section of the Telecommunications Act of 1996 (“TCA”)

proscribing actions of local authorities that have the effect of

prohibiting the provision of personal wireless services. 47

U.S.C. § 332 (c)(7)(B)i)(I) (2000) (the “prohibition

restriction’”’). In particular, the “one provider” rule articulated

by the Court of Appeals for the Third Circuit, which denies

relief under the prohibition restriction if at least one other

provider in an area are can provide service to its subscribers,

has the paradoxical effect of denying personal wireless

services to subscribers of other providers in that area.

The Third Circuit’s interpretation of the prohibition

restriction, if permitted to stand, would be detrimental to

millions of amici’s subscribers as well as subscribers of other

providers. ' The confusion surrounding the proper

interpretation of the prohibition restriction also greatly

complicates local zoning board consideration of thousands of

applications for individual facilities and impedes amici's

efforts tc develop the nationwide facility networks necessary

to provide the seamless, ubiquitous and reliable personal

wireless services envisioned by Congress and the FCC.

' No counsel for any party in this case authored this brief in whole or in

part, and no person or entity other than amici curiae and their members

made any monetary contribution to the preparation or submission of this

brief. All parties have given their consent in writing to the submission of

this brief.

SUMMARY OF ARGUMENT

This matter presents the question whether a personal

wireless services provider can be denied the ability to

provide services within its licensed service area because

another provider already provides service in that area. Given

Congress’ stated goal to promote competition, reduce

regulation, encourage rapid deployment of new

telecommunications technologies and ensure availability of

seamless, ubiquitous and reliable personal wireless services,

the answer to this question must be “no.”

In the TCA, Congress sought to preserve a local

voice in facility siting while ensuring that parochial interests

would not frustrate national telecommunications policy. The

prohibition restriction seeks to ensure that the question

addressed at the local level is not what services should be

available but where the necessary facilities should be

located. There is a significart split of opinion among the

Courts of Appeals on interpretation of the prohibition

restriction. As the statute in question governs individual

decisions of local zoning boards, this split of opinion results

in confusion and uncertainty in thousands of local land use

application proceedings.

The one provider rule formulated by the Third Circuit

denies providers and their subscribers the protection of the

prohibition restriction if another provider already operates in

the area to be served. This reading of the statute has been

repudiated by the First Circuit and misinterprets the TCA to

the detriment of the very consumers Congress sought to

protect. For the prohibition restriction to have any efficacy it

must be applied in a manner that permits each provider to

secure approval of the facilities necessary to provide

seamless, ubiquitous and reliable service to its subscribers.

ARGUMENT

The explosive growth of personal wireless services”

reflects an extraordinarily successful example of

deregulation permitting market forces to drive the rapid

deployment of new technologies of great public benefit. In

the span of a decade, personal wireless services have

transformed from a high-tech business tool available to a few

into a mass-market consumer product that has become an

integral part of American life.’ Over 144 million Americans

now subscribe to a personal wireless service, and it has been

estimated that over 30% of calls previously transmitted by

the land-line telephone network are now transmitted

wirelessly. *

The key to this growth has been the persistence of

Congress and the FCC in shielding personal wireless

services from the potentially stultifying effects of state and

local regulation. Even at the federal level, the FCC is

? The term “personal wireless services” includes cellular, PCS, SMR and

wireless data transmission. Technically, “cellular” is the regulatory term

for the first personal wireless services licensed to exploit the then newly

developed technology of a coordinated network of facilities using low-

powered, limited range transmissions to provide mobile

telecommunications. FIRST ANNUAL REPORT AND ANALYSIS OF

COMPETITIVE MARKET CONDITIONS WITH RESPECT TO COMMERCIAL

SERV., FCC 95-317, at 13 [hereinafter FIRST ANNUAL REPORT]. PCS and

SMR are functionally equivalent and technically similar services

operating in slightly different frequency ranges.

> See FIRST ANNUAL REPORT, FCC 95-317 at 3 (describing personal

wireless services in 1995 as a business tool serving 24 million

customers). Emblematic of the speed with which this transition occurred,

by 1997 a personal wireless services plan had been added to the

Consumer Price Index’s “basket” of goods and services. EIGHTH

ANNUAL REPORT AND ANALYSIS OF COMPETITIVE MARKET CONDITIONS

WITH RESPECT TO COMMERCIAL SERV., FCC 03-150, at 45 n.319

{hereinafter EIGHTH ANNUAL REPORT].

* EIGHTH ANNUAL REPORT, FCC 03-150 at 5, 49.

3

mandated by statute to conduct an annual review of

competition in the personal wireless services industry, 47

U.S.C. § 332(c)(1)(C), and periodically review and eliminate

regulations that have proven unnecessary due to the self-

regulatory effects of market forces. 47 U.S.C. § 161(a)(2).

Despite widespread subscriber demand and _ the

tremendous utility of personal wireless services, there is a

long history of local hostility to the facilities necessary to

provide service. Applications have been subject to

interminable delays,” and are frequently denied for pretextual

reasons in response to “not in my backyard” objections or

unfounded concerns over radio emission safety. Congress

recognized that such resistance threatened development of

the facility networks necessary for efficient utilization of the

radio spectrum dedicated to personal wireless services.

Therefore, in the TCA, Congress expressly preempted

certain conduct on the part of local authorities and subjected

application denials to federal court review. See H.R. No.

104-204, at 94, reprinted in 1996 Code Cong. & Admin.

News, at 61 (“Such requirements will ensure an appropriate

balance in policy and will speed deployment and the

availability of competitive wireless telecommunications

services which ultimately will provide consumers with lower

costs as well as with a greater range and options for such

services.”).

Of particular relevance to this appeal, the section of

the TCA addressing prohibition of services provides that:

* The most extreme example of such delay might be the application at

issue in Cellular Tel. Co. v. Zoning Bd. of Adj. of Ho-Ho-Kus, 197 F.3d

64 (3d Cir. 1999), which was the subject of 61 zoning board hearings

over seven years before finally being approved and put in service in

2001.

ESL 2 LN LAS a

[t]he regulation of the placement, construction, and

modification of personal wireless service facilities by

any State or local government or instrumentality

thereof-- ... shall not prohibit or have the effect of

prohibiting the provision of personal wireless

services.

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

By mandating that service be permitted, the

prohibition restriction seeks to limit the issue addressed at

the local level to determining where the facilities necessary

for service should be located. It is incomprehensible that

Congress, in a statute preempting local regulations that

would have the effect of prohibiting the provision of

personal wireless services, intended for that statute to be

interpreted in a manner which places in the hands of local

zoning officials ultimate control over the number of licensed

providers servicing an area. That, however, is exactly the

result of the Third Circuit’s one provider rule.

A. The Petition Should Be Granted to Provide

Clear Guidance on the Effect of the

Prohibition Restriction.

The prohibition restriction is in dire need of uniform

interpretation. At present, the Courts of Appeals for the

First, Second, Third and Fourth Circuits have all adopted

° In addition to the prohibition restriction, §332(c)(7)(B)(ii) requires

applications for facilities to be resolved in a reasonable period of time,

§§(B)(iv) prohibits denials based on the environmental effects of radio

frequency emissions that comply with emission regulations, §§(B)(i)(1)

prohibits denials that unreasonably discriminate among providers of

functionally equivalent services. Denial decisions must also be in

writing and the state law substantive grounds for denial supported by

substantial evidence. §§(B)(iii).

interpretations of the prohibition restriction that conflict with

each other. This results in manifest confusion in district

court and state court decisions, particularly in jurisdictions

not bound to follow any of the existing standards. Because

the prohibition restriction governs the validity of local

zoning decisions, this uncertainty is particularly problematic.

Over the course of a year, thousands of applications for such

facilities will be brought before local zoning boards. These

bodies, and the providers appearing before them, need to

know the effect of the prohibition restriction on the

applications before them. The current uncertainty

complicates the application process, spawns litigation and

impedes the development of the facility networks needed to

provide seamless, ubiquitous and reliable service.

Providers and local boards have been frustrated by

this uncertainty for years. In the earliest federal appellate

decision addressing the prohibition restriction, the Court of

Appeals for the Fourth Circuit formulated an unduly narrow

standard, holding that an individual zoning decision could

not violate the prohibition restriction since the provision

applies only to blanket prohibitions. AT&T Wireless PCS,

Inc. v. City Council of Virginia Beach, 155 F.3d 423, 429 (4"

Cir. 1998). Under this interpretation, which remains the

most restrictive applied by any jurisdiction, the prohibition

restriction has become a nullity except in those now-rare

instances in which a local authority is impolitic enough to

articulate an express ban. '

” In 360 Degrees Communications Co. of Charlottesville v. Board of

Supervisors of Albemarle County, 211 F.3d 79, 87 (4" Cir. 2000), the

Fourth Circuit suggested as a “theoretical possibility” that under an

extreme set of facts, it might find something less overt than an express

ban to give rise to a prohibition of service. The Fourth Circuit itself

dismissed this possibility as “unlikely in the real world.” Jd.

6

————<—<<$<$< lr tt t~—~—~S

All other Courts of Appeals that considered this issue

have recognized that, since most regulation of land use

occurs through decisions on individual applications, the

prohibition restriction must apply to more than express bans.

See, e.g., Voicestream Minneapolis, Inc. v. St. Croix County,

342 F.3d 818 (7" Cir. 2003)(rejecting Virginia Beach

standard). In Town of Amherst, N.H. v. Omnipoint

Communications Enter., Inc., 173 F.3d 9 (1" Cir. 1999), the

Court of Appeals for the First Circuit held that an individual

denial could violate the prohibition restriction if the

circumstances, viewed de novo by a reviewing court,

demonstrated “such fixed hostility by the Board that one can

conclude that further applications would be useless.” Jd. at

14.

Roughly contemporaneous with the Amherst

decision, the Court of Appeals for the Second Circuit

formulated a different standard. In Sprint Spectrum, L.P. v.

Willoth, 176 F.3d-630 (2d Cir. 1999), the Second Circuit

recognized that if a proposed facility was the least intrusive

means of filling a gap in service, it could be presumed that if

such an application was denied, any other application would

meet the same fate, making the denial an effective

prohibition in violation of the TCA. Both the First and

Fourth Circuits have expressly rejected the least intrusive

means element of the Willoth test.

| The Court of Appeals for the Third Circuit, however,

| embraced the least intrusive means test and other aspects of

- Willoth in Ho-Ho-Kus, 197 F.3d at 70. There, the Third

Circuit held that a gap exists when a subscriber using a hand-

held phone is “unable either to connect with the land-based

national telephone network, or to maintain a connection

capable of supporting a reasonably uninterrupted

communication.” Jd. The Third Circuit suggested that a gap

pra Ati ait ei dite a aay ak. al Phat

would be significant where, due to its size, population

density and/or traffic volume, the gap would impact a large

number of subscribers. /d. at 70 n.2 (based on findings made

de novo by the reviewing court. /d. at 71.).

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

469 (3d Cir. 1999), however, the Third Circuit for the first

time articulated the one provider rule and required that a

prohibition claim “include evidence that the area the new

facility will serve is not already served by another provider.”

Id. at 480 (emphasis added). The Third Circuit has never

offered any justification for this rule based on statutory

language or legislative intent. The rule instead is the product

of misinterpretation of dicta in Willoth suggesting that “once

an area is sufficiently serviced by a wireless service provider

... [S]tate and local governments may deny subsequent

applications without thereby violating [the prohibition

restriction].” Willoth, 176 F.3d at 643 (emphasis added). No

explanation was given by the Third Circuit in Penn

Township for insertion of the word “another” or deletion of

the word “sufficiently” compared to the original language in

Willoth.*

In Second Generation Props., L.P. v. Town of

Pelham, 313 F.3d 620 (1% Cir. 2002), the First Circuit

conducted a thorough examination of the statutory language,

legislative history and regulatory framework, and found that

there was no justification for the one provider rule. In

® Reported district court decisions in the Second Circuit have declined to

follow Penn Township and do not read Willoth as adopting the one

provider rule, see, e.g., Nextel Partners, Inc. v. Town of Amherst, 251 F.

Supp. 2d 1187 (W.D.N.Y. 2003); Cf Site Tech Group, Ltd. v. Town of

Brookhaven BZA, 140 F. Supp. 2d 255, 263-65 (E.D.N.Y. 2001)(citing

one provider rule as an alternate grounds for denial).

8

reaching this conclusion, the First Circuit stressed the

counterproductive effect of the rule on subscribers:

Such a rule would be highly problematic because it

does not further the interest of the individual

consumer. To use an example from this case, it is of

little comfort to the customer who uses AT&T

Wireless (or Voicestream, Verizon, Sprint or Nextel)

who cannot get service along the significant

geographic gap which may exist along Route 128 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 that 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....When Congress enacted legislation to

promote the construction of a nationwide cellular

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

intended result.

Second Generation, 313 F.2d at 633 (emphasis added).

Ironically, in Omnipoint Comm. Enter. v. Easttown

Tp., 319 F.3d 627 (3d Cir. 2003)(Easttown Tp. II), a panel of

the Third Circuit initially rejected the one provider rule,

noting that it was inconsistent with legislative intent, the

relevant regulatory framework, and the Willoth decision

from which it was derived. The panel’s later withdrawal of

this opinion relied solely on Third Circuit internal operating

procedures binding individual panels to rulings contained in

prior published opinions. Omnipoint Comm. Enter. v.

Easttown Tp., 331 F.3d 386, 396 (3d Cir. 2003)(Easttown

Tp. Ill). The Third Circuit’s failure to offer any substantive

justification for the one provider rule, either on

reconsideration or in denying en banc review, is remarkable

in light of the Second Generation decision and a vigorous

dissent from Judge Rosenn stressing the flaws highlighted by

the First Circuit. Indeed, it does not appear that any tribunal

has ever advanced a substantive justification for the rule,

which, by dint of repetition alone, has assumed a

jurisprudential life of its own.

Lower courts looking for guidance have thus been

confronted with a situation in which the First Circuit has

rejected the Third Circuit’s one provider rule and the Second

Circuit’s least-intrusive means test. The Fourth Circuit has

rejected the Second and Third Circuit tests, and the First,

Second, Third and Seventh Circuits in turn have rejected the

Fourth Circuit’s entire approach to interpretation of the

prohibition restriction. The Third Circuit has adopted the

Second Circuit’s least intrusive means test, but has adopted

the one provider rule, which the Second Circuit has not.

Not surprisingly, this conflict among the Courts of

Appeals has resulted in an even greater difference of opinion

among lower courts. In California, for example, one district

court has embraced the one provider rule _ without

reservation, see Airtouch Cellular v. City of El Cajon, 83 F.

Supp. 2d 1158, 1167-68 (S.D. Cal. 2000)(following Penn

Township), while another has rejected that rule. See

MetroPCS v. San Francisco, 259 F. Supp. 2d 1004, 1013-14

(N.D. Cal. 2003)(following Second Generation). Such

disagreements have arisen time and again across the country.

See, e.g., APT Minneapolis, Inc. v. Eau Claire County, 80 F.

Supp. 2d 1014, 1025 (W.D. Wisc. 1999)(following

Amherst); Bellsouth Mobility, Inc. v. Parish of Plaquemines,

40 F. Supp. 2d 372, 381 (E.D. La 1999)(following Virginia

10

Beach); AT&T Wireless PCS, Inc. v. Town of Porter, 203 F.

Supp. 2d 985, 1001 (N.D. Ind. 2002)(following Penn

Township); Nextel Partners of Upstate N.Y., Inc. v. Town of

Canaan, 62 F.Supp. 2d 691, 697 (N.D.N.Y. 1999)(following

Willoth); SiteTech Group, Ltd v. Town of Brookhaven BZA,

140 F. Supp. 2d 255 (E.D.N.Y. 2001)(following Penn

Township); Nextel vy. Town of Amherst, 251 F. Supp. 2d at

1195-96 (following Second Generation and rejecting Penn

Township); Independent Wireless One Corp. v. Town of

Charlotte, 242 F. Supp. 2d 409, 419 (D. Vt. 2003)(rejecting

Penn Township); Sprint Spectrum, L.P. v. Board of County

Commn’rs of Jefferson County, 59 F. Supp. 2d 1101, 1109

(D. Colo. 1999)(following Amherst).

For local zoning boards, unless their own state courts

of last resort have addressed this issue, a// of the conflicting

decisions discussed above represent persuasive authority.

Some boards, concerned about denying an application

entitled to approval on prohibition grounds, mandate that

applicants prove the coverage of all providers in the area, a

difficult, costly and time-consuming task.” Others, perhaps

looking for a pretext to deny an application, have attempted

” One problem of the one provider rule, as well as the middle ground

advocated by the dissent below of determining prohibition based on a

ratio of customers who cannot receive service compared to total

customers, Easttown Tp. III, 331 F.3d at 401-02 (Rosenn, J. dissenting),

is that the data necessary to make this calculation is either unavailable or

proprietary. The flaws in Omnipoint’s expert testimony criticized below

in fact illustrate the difficulty of one provider attempting to measure the

service of another. Compare Easttown Tp. Ill, 331 F.3d at 398

(describing efforts to judge service based on 80 calls made with a phone

from another provider plugged into a laptop computer) with Ho-Ho-Kus,

197 F.3d at 69 (describing standard method of a provider measuring its

own service based on thousands of calls monitored with specialized

equipment). In addition, given that customers are by definition mobile,

there is no reliable method of determining the number of a particular

provider’s customers inconvenienced by a specific gap. -

1]

to subpoena other providers to compel them to appear and

prove that they have coverage. The extent to which federal

telecommunications policy favors availability of services

from all licensed providers also has potential relevance to

public policy balancing tests under the zoning laws of some

states. Doubt over what the prohibition restriction means

complicates and protracts zoning hearings and leads to a

great deal of litigation that might otherwise be avoided.

Because personal wireless services technology depends on a

large number of local sites, the delay and confusion caused

by this uncertainty is compounded thousands of times a year

in municipal halls across the country.

Omnipoint’s petition presents an appropriate vehicle

for remedying the uncertainty surrounding interpretation of

the prohibition restriction. Resolving these questions would

in turn remove a significant impediment to the ongoing

development of providers’ facility networks. Given the

importance of this issue and the widespread confusion

resulting from the conflicting judicial pronouncements, this

Court should hear the instant case.

B. The Statutory and Regulatory Framework

Anticipates Application of the Prohibition

Restriction on a _Provider-By-Provider

Basis.

The one-provider rule ignores the regulatory and

legislative history of personal wireless services and frustrates

the basic policy underlying the prohibition restriction. When

the FCC licensed personal wireless services, it made a policy

decision to reallocate scarce space in the electromagnetic

spectrum to exploit the unique ability of this technology to

meet increasing demand by subdividing cells and re-using

frequencies, thereby increasing capacity without consuming

12

1

1

,

:

i

additional bandwidth. Jn re Cellular Communications Sys.,

86 F.C.C.2d 469, 474-82 (1981), reh’g denied, In re

Advanced Mobile Phone Serv., Inc. North-West Tel. Co. &

GTE Mobilenet of Milwaukee, Inc., No. 79-318, 1986 WL

292526 (F.C.C. Jan. 6, 1986). Making a further deliberate

judgment that this technology could best be made available

through market forces, the FCC allocated sufficient .

bandwidth to license multiple providers in each area. In re

Cellular Communications Sys., 86 F.C.C.2d at 474-82.

Given Congress’ presumed awareness of these

cornerstones of personal wireless services regulation, it

could not have intended the prohibition restriction to protect

only one provider in an area. The FCC considered and

rejected licensing schemes in which one provider would be

deemed sufficient to service an area. Jn re Cellular

Communication Sys., 86 F.C.C.2d at 471-72. It therefore ~

preempted state regulatory schemes that might have had the

| effect of permitting only one provider to provide service in

| an area. Jd. at 505 (“requiring demonstration of a general

| public need for cellular service could adversely affect our

frequency allocation or delay the rapid implementation of

cellular service, both of which are central elements of the

federal design for-cellular operations.”).'° It also noted that

“the inability of any cellular licensee to provide service

could significantly inconvenience the public and cause a

huge amount of spectrum to be unused,” in contravention of

the FCC’s mandate to ensure efficient use of the

electromagnetic spectrum. /d. at 502. Out of a conviction

'° Other TCA provisions preempt state and local authorities from

regulating market entry by personal wireless services providers, see 47

U.S.C. § 332(c)(3)(A), and prohibit state and local legal requirements

that “may prohibit, or have the effect of prohibiting the ability of any

entity to provide any interstate or intrastate telecommunications service.”

47 U.S.C. § 253(a).

13

that the then current availability of service from two

providers was insufficient to provide the desired competition

and availability of service, the FCC later reinforced this

policy of multiple providers by reallocating further

bandwidth to license an additional six PCS providers and at

least one SMR provider per market area.

These policies were emphatically reaffirmed in the

TCA, which reflects Congress’ intent to promote

competition and reduce regulation “in order to secure better

prices and higher quality services for American

telecommunications consumers and _ encourage rapid

deployment of new telecommunications technologies.”

TCA, Pub. L. No. 104-104, 110 Stat. 56. In the specific

context of personal wireless services, Congress directed that

regulation of this technology be guided by the desire to

“improve the efficiency of spectrum use and reduce the

regulatory burden upon spectrum users,” and to “encourage

competition and provide services to the largest feasible

numbers of users[.]” 47 U.S.C. § 332(a)(2), (3). The one

provider rule, by denying service to customers of certain

providers and preventing the utilization of the providers’

assigned spectrum in certain areas, is directly contrary to

Congressional intent.

The one provider rule is also hostile to the primary goal of

wireless telecommunications policy: to “promote the safety

of life and property.” 47 U.S.C. § 332(a)(1). In the years

following enactment of the TCA, both Congress and the

FCC, to ensure availability of 911 service to all personal

wireless subscribers, have articulated a public policy in favor

of “the construction and operation of seamless, ubiquitous,

and reliable telecommunications systems” as a means to that

end. Wireless Communications and Public Safety Act of

1999, Pub. L. No. 106-81, 113 Stat. 1286 (1999). See also In

14

re Revision of Rules to Ensure Compatibility With E911

ECS, Memorandum Opinion and Order 12 F.C.C.R. 22,665

(1997); 47 C.F.R. § 20.18; In re Revision of Rules to Ensure

Compatibility With E911 ECS, Second Report and Order, 14

F.C.C.R. 10,954, 10,962-63 § 19 (1999)(mandating

provision of 911 and E911 services).

Seamless, ubiquitous and reliable access to personal

wireless 911 service for subscribers of all licensed providers

is a planned by-product of the decision by Congress and the

FCC to permit market forces to expedite network

development. After the events of September 11, 2001,

which demonstrated the robustness of such systems, public

safety concerns have assumed even greater importance. See

DALE HATFIELD, A REPORT ON TECHNICAL AND

OPERATIONAL ISSUES IMPACTING THE PROVISION OF

WIRELESS ENHANCED 911 SERVICES 15 (2002), available at

http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf

=pdf&id_document=6513296239. Over one-third of all 911

calls are now made from wireless phones. Related trends,

including subscribers discontinuing land-line service, place

an even greater premium on the availability of "seamless,

ubiquitous and reliable" personal wireless systems as a

means of providing 911 services. Jd. The one provider rule

clashes with these goals.

a The One-Provider Rule Has the Effect of

Prohibiting Services.

The one-provider rule directly undermines the

prohibition restriction’s focus “upon the end result to the

consumers and their reception of uninterrupted wireless

telephone service.” Omnipoint Comm. Enter. v. Newtown

Township, 219 F.3d 240, 244 (3d Cir.), cert. denied, 531

U.S. 985 (2000). The fact that service is available to

15

subscribers of another provider is irrelevant to subscribers of

the provider seeking to fill the gap. Subscribers of a

provider without coverage in an area are “unable to connect

with the land-based national telephone network or to

maintain a connection capable of supporting a reasonably

uninterrupted connection.” Ho-Ho-Kus, 197 F.2d at 70

(defining elements of prohibition of service). The “end

result” to these subscribers is that they cannot use their

phones.

The implicit assumption of the one provider rule is

that service by one provider in an area is sufficient. This

assumption ignores the fact that, due to numerous factors,

subscribers of one provider cannot receive service through

the facilities of another provider. As a matter of federal

policy favoring competition, in most areas there are

competing providers for each type of personal wireless

service. Cellular providers were originally required to utilize

a common analog format, but were later permitted to shift

most of their spectrum allocation to varying digital formats,

reflecting the FCC’s policy to encourage providers to adopt

new technologies to respond to market demands. See FIRST

ANNUAL REPORT, FCC 95-317 at 16. PCS and SMR use a

variety of incompatible all-digital formats, including GSM,

CDMA, TDMA, and IDEN. Driven by intense customer

demand for more efficient wireless data transfer, a

movement is already underway towards implementation of

different third generation, or “3G” formats, with each carrier

developing formats tailored to providing different mixes of

services.

While there are isolated circumstances in which

subscribers of one provider can access the network of

another, these exceptions are sufficiently rare and difficult to

implement that the FCC has dismissed the prospects of most

16

subscribers doing so as theoretical. Jn re Revision of Rules

to Ensure Compatibility With E911 ECS, Second Report and

Order, 14 F.C.C.R. at 10,954-76 993, 6, 21-26, & n.31, 35,

n.47. Furthermore, even when possible, using another

provider’s network generally requires initiating a new call,

obtaining operator assistance and use of a credit card. Not

only is this practice cumbersome, it does not permit a

subscriber to maintain a connection when moving between

cells, an integral element of the definition of “service”

utilized by the Second and Third Circuits. See Ho-Ho-Kus,

197 F.3d at 70.

In light of the importance Congress and the FCC have

placed on making 911 service available to all subscribers, the

Third Circuit’s standard is particularly problematic. The

assumption that it is permissible for municipalities to act in a

manner that has the effect of rendering 911 service

unavailable to customers of some providers poses a threat to

public health and safety and is inconsistent with

Congressional intent and the federal regulatory scheme. Jn

re Revision of Rules to Ensure Compatibility With E911

ECS, Second Report and Order, 14 F.C.C.R. at 10,962-63 {

19 (1999)(“The failure to deliver 911 calls because of

coverage gaps can contribute to tragic outcomes in these

emergency situations.”).

Finally, as the First Circuit recognized in Amherst,

173 F.3d at 16, the prohibition restriction assumes particular

importance when a denial that leaves a substantial gap in a

provider’s network is not subject to challenge under other

17

provisions of state or federal law.'' It is common for local

ordinances to exclude personal wireless facilities as

permitted uses in areas in which facilities are needed to

provide services. In addition, many states require a showing

that a site is amenable to no permitted use as a condition for

a use variance. Where, as is the case in Easttown Township,

these two impediments coincide, it is impossible under state

law to secure approval of a personal wireless facility,

regardless of the need for the proposed facility.

If a necessary site cannot be approved under state

law, relief under the TCA’s substantial evidence provision is

also unavailable, as that provision is governed by state

substantive law. In such circumstances, if relief under the

prohibition restriction is not available, no relief is available.

The affected subscribers must simply do without service. As

a result, they are deprived of the quintessential benefit of the

Information Age revolution made possible by personal

wireless services: mobility without sacrificing the ability to

stay in contact. They lose the ability to make calls, summon

emergency services, and, what is frequently most important,

the confidence that they can be reached by a call to the same

number, regardless of where they travel in their provider’s

service area.

In interpreting the prohibition restriction to permit

prohibition of service to subscribers of other providers so

'! In particular, since land parcels are inherently unique and virtually any

difference has been found sufficient to justify disparate treatment, the

unreasonable discrimination provision has essentially become a dead

letter. See Second Generation, 313 F.3d at 634-35 (questioning efficacy

of discrimination provision). Indeed, it is not uncommon for

discrimination claims to be rejected for applications to mount antennas

on an existing structure on which another provider’s facility is already

located. See, e.g., Nextel Comm. v. City of Cambridge, 246 F. Supp. 2d

118 (D. Mass. 2003); City of El Cajon, 83 F. Supp. 2d 1158.

18

long as subscribers of one provider can receive service, the

one provider rule misinterprets the TCA. It does so to the

detriment of the very consumers Congress sought to protect.

Properly viewed, prohibition of services occurs

whenever a provider is unable to secure approval of the

facilities necessary for its customers to be able to rely on

their ability to use their phones. It does not matter whether

this inability is the result of an express ban, or a denial of a

facility application for the only feasible location, or a denial

under circumstances that would lead a reasonable person to

conclude that all other applications would meet the same

fate. The practical result to subscribers is the same: they

cannot use their phones. For the prohibition restriction to

have any efficacy, it must be applied in a manner that

permits each provider to secure approval of the facilities

necessary to provide seamless, ubiquitous and reliable

service to its subscribers.

CONCLUSION

For the reasons set forth above, AT&T Wireless

Services, Inc. and Cellco Partnership, d/b/a Verizon Wireless

respectfully request that the Petition for Writ of Certiorari of

Omnipoint Communications Enterprises, L.P., be granted.

Respectfully submitted,

KENNETH J. WILBUR, ESQUIRE

Counsel of Record

Drinker Biddle & Reath, LLP

500 Campus Drive

Florham Park, NJ 07932-1047

973-360-1100

Counsel for AT&T Wireless

Services, Inc., and Cellco

Partnership, d/b/a _ Verizon

Wireless

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