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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1108

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2370%3A5. Public record. Not legal advice.