Amicus Curiae Brief — Omnipoint Communications Enterprises, L. P. v. Newtown Township

ee

MOTION FILED

wy Oct 5 amg

No. 00-353

IN THE SUPREME COURT OF THE UNITED STATES oF

OMNIPOINT COMMUNICATIONS ENTERPRISES, L.P.,

Petitioner,

V.

NEWTOWN TOWNSHIP

AND

THE ZONING HEARING BOARD OF NEWTOWN TOWNSHIP,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

MOTION FOR LEAVE TO FILE AND BRIEF AMICI

CURIAE OF AT&T WIRELESS SERVICES, INC.,

NEXTEL COMMUNICATIONS, INC., AND SBC

WIRELESS, INC. IN SUPPORT OF PETITIONER

THOMAS F. CAMPION, ESQUIRE

Counsel of Record

KENNETH J. WILBUR, ESQUIRE

Drinker Biddle & Shanley LLP

A Pennsylvania Ltd. Liability Partnership

500 Campus Drive

Florham Park, New Jersey 07932-1047

(973) 360-1100

Counsel for AT&T Wireless Services, Inc.,

Nextell Communications, Inc., and SBC

Wireless, Inc.

Z25ef

MOTION FOR LEAVE TO FILE

AMICI CURIAE BRIEF

Pursuant to Rule 37.2 of the Rules of this Court,

amici, AT&T Wireless Services, Inc, Nextel

Communications, Inc., and SBC Wireless, Inc., respectfully

move for leave to file the attached brief of amici curiae in

support of the Petition for Writ of Certiorari. Petitioner

Omnipoint Communications Enterprises, L.P., has consented

to this filing. Respondents have denied consent. Amici have

a substantial interest in securing a definitive and consistent

interpretation of 47 U.S.C. § 332(c)(7)(B)(i)(ID, the portion

of the Telecommunications Act of 1996 which preempts

actions of local officials which would have the effect of

prohibiting the provision of personal wireless services.

Amici, through their subsidiaries and affiliates, are

providers of personal wireless services to over 30 million

subscribers nationwide. The provision of personal wireless

services requires that each provider maintain an interlocking

network of transceiver cells located no more than a few

miles apart. At any given time amici, on a nationwide basis,

are involved in thousands of applications before local land

use boards to secure approval of the necessary facilities. The

section of the TCA preempting decisions of such boards that

would have the effect of prohibiting the provision of wireless

services plays an important role in ensuring that such

applications receive a fair hearing and that local concerns do

not frustrate national telecommunications policy.

Amici submit that the decision of the Third Circuit in

this case raises a significant and recurring issue regarding the

proper interpretation of the prohibition of service provision.

The courts of appeals and district courts are not in accord in

their interpretations of this provision, and this uncertainty is

problematic to providers and local government entities.

Moreover, the Third Circuit’s standard eviscerates the

Statutory protection intended to be provided by the

prohibition of service provision. In areas currently serviced

by only one provider, the Third Circuit’s standard will have

the effect of prohibiting the provision of service to

subscribers of all other providers, since, in general,

subscribers of one provider cannot receive service through

the facilities of another provider. It will also prevent

competition, a key goal of the statutory and regulatory

framework governing personal wireless services.

As a result, the issues presented in this case are of

exceptional importance to amici and their millions of

subscribers. Amici seek to promote a_ consistent

interpretation of the prohibition of service provision that is

faithful to the statute and consistent with federal

telecommunications policy. Amici therefore respectfully

seek leave of this Court to file the attached brief.

Respectfully submitted,

Thomas F. C on

(Counsel of Record)

Kenneth J -.

Counsel for amici curiae

AT&T Wireless Services, Inc.,

Nextel Communications, Inc.

and SBC Wireless, Inc.

Drinker Biddle & Shanley, LLP

500 Campus Drive

Florham Park, NJ 07932-1047

973-360-1100

TABLE OF CONTENTS

PAGE

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INTEREST OF AMICI CURIAE 0000000... ccccccecccccececececc ce. l

SUMMARY OF ARGUMENT 0000. 2

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A. The Petition Should Be Granted to Remedy

the Lack of Consistent Interpretation of the

Prohibition Restriction. ....................ccccc00000.--0.0.....

B. The Petition Should Be Granted To Correct

Erroneous Interpretation of A Key Statutory

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TABLE OF AUTHORITIES

CASES PAGE

APT Minneapolis, Inc. v. Eau Claire Count :

80 F. Supp. 2d 1014 (W.D. Wisc. 1999) ............... 8

APT Pittsburgh Ltd. P'ship v. Penn Townshi "

196 F.3d 469 (3rd Cir. 1999) 0 7,8

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

Virginia Beach,

155 F.3d 423 (4th Cir. 1998)... 5,6,8,9

Airtouch Cellular v. City of El ajon,

83 F. Supp. 2d 1158 (S.D. Cal. See re 8

Bellsouth Mobility, Inc. v. Parish of Plaquemin :

40 F. Supp. 2d 372 (E.D. La 1999) 8

In re Cellular Communications S.,

86 F.C.C.2d 469 (1981), reh'g denied,

In re Advanced Mobile Phone Serv.,

Inc. North-West Telephone Co. & GTE

Mobilenet of Miiwaukee, Inc.,

1986 WL 292526 (F.C.C. Jan. 6, 1986)........3,14,15

Cellular Telegraph Co. v. Zoning Bd. Adj. of

Ho-Ho-Kus,

197 F.3d 64 (3rd Cir. 1999) 0. 6,7,8,11,13

Cellular Telegraph Co. v. Zoning Bd. of Adj. of Harrington

Park,

90 F. Supp. 2d 557 (D.N.J. 2000)... occ. 8

11

TABLE OF AUTHORITIES

(continued)

CASES PAGE

In re Implementation of Section 6002(B) of ORBA 1993,

10 FCC Red. 8844 (1995) 15

In the Matter of Revision of the Commission’ Rules to

Ensur mpatibility With Enhanced 911 Emergenc

FCO. SAGGS C07... 13

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

62 F. Supp. 2d 691 (N.D.N_Y. 3S , Se etre 8.9

Omnipoint Communications Enter. LP. v. Newtown

Township,

219 F.3d 240 (3rd Cir. 2000)... fe

Omnipoint Communications MB Operations, LLC

v. Town of Lincoln,

107 F. Supp. 2d 108 (D. Mass. 2000)... 8

Public Utility Comm’n of Texas, et al., Petitions for

Declaratory Ruling and/or Preemption of Cert in Provision

f the Te lic Util. Regulatory Act of 1995,

13 FCC Red. 3460 (1997). 14

In re Revision of Rules to Ensure Compatibility with

Enhanced 911 ECS,

14 FCC Red. 10,954 (1999)... 9,10,11,12,13

In re Silver Star Tel. Co., Inc. Petition for Preemption and

Declaratory Ruling, 12 FCC 15639 1, 2 5 Saar aa 14

iil

TABLE OF AUTHORITIES

(continued)

CASES PAGE

T Cellular, Inc. v. ll,

99 F. Supp. 2d 190 (D.R.I. 2000) 0... es 8

Jefferson County,

59 F. Supp. 2d 1101 (D. Colo. 1999)... 9

Sprint Spectrum, L.P. v. Willoth,

176 F.3d 630 (2d Cir. 1999).....0..... ee. 6,7,8,9,11

360 D mmunications Co. of Charlottesville v.

Board of Supervisors of Albemarl unty,

Zi E Fe Fo ee Ga hte Gaiden 5

Town of Amherst, N.H. v. Omnipoi nicati

Enter., Inc.,

173 B.36 9 Chet Ce. VAR i niviscdcruscniaos 6,8,9

REGULATIONS

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STATUTES

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TABLE OF AUTHORITIES

(continued)

PAGE

STATUTES

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SESSION LAWS

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

SERPS RT Sout Depry ye TaN RA eee 4,16

Wireless Communications and Public Safety Act of 1999,

Pub. L. No. 106-81, 113 Stat. 1286.00.00... eee 12

CONGRESSIONAL AND REGULATORY REPORTS

Fed. Communications Comm’n, ] lysi

rc tive Market Conditions with }

Commercial Serv.,

i ery UN 5 cckisscsccscvesscdensenreecdssesesatcc, 3

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

pS 1” SR RCT ECON ANNE nny ana eR 45

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

INTEREST OF AMICI CURIAE

Amici curiae AT&T Wireless Services, Inc., Nextel

Communications, Inc., and SBC Wireless, Inc., through their

subsidiaries and affiliates, provide personal wireless services

to over 30 million subscribers nationwide. The ongoing

process of securing local approvals for the facilities

necessary to provide service is a substantial undertaking,

involving thousands of applications nationwide at any given

time. At the present time there is no consensus on the proper

interpretation of that portion 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 (c7)(B)(iX(II) (2000) (the

“prohibition — restriction”). This uncertainty greatly

complicates the application process and subsequent judicial

review of application denials.

Moreover, the standard adopted by the Third Circuit

is contrary to federal telecommunications policy in that it

permits local authorities to deny applications for personal

wireless facilities so long as subscribers of one personal

wireless provider can receive service. Denial of an

application in such circumstances has the effect of

prohibiting the provision of personal wireless services to

subscribers of other providers. This standard, if permitted to

stand, would be highly detrimental to the millions of

subscribers of amici as well as the millions of subscribers of

other providers.’

: 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.

SUMMARY OF ARGUMENT

In the TCA, Congress sought to preserve a role for

local authorities in siting personal wireless facilities while

ensuring that parochial interests would not frustrate national

telecommunications policy. The prohibition restriction seeks

to ensure that the ultimate question in land use proceedings

is not whether services should be available but where the

necessary facilities should be located. The lack of consensus

on the proper interpretation of the prohibition restriction is

problematic, as applicants and land use boards are uncertain

as to the law governing review of decisions on applications

for personal wireless facilities. Omnipoint Communications

Enterprises, L.P.’s petition should be granted because the

Third Circuit’s decision turns on this important but unsettled

question of federal telecommunications law.

The petition should also be granted because the

standard adopted by the Third Circuit rests on the false

premise that it is sufficient that one provider service an area.

With rare exceptions, however, cribers of one provider

cannot receive service through the facilities of another

provider. As a result, the standard permits the prohibition of

service to subscribers of other providers so long as

subscribers of one provider are able to receive service. This

standard misinterprets the TCA to the detriment of the very

consumers Congress sought to protect by ensuring the

availability of service and promoting competition. It also

frustrates the efforts of personal wireless providers to secure

approvals for the facilities necessary to provide service to

their subscribers. For the prohibition restriction to have any

efficacy, it must be applied on a provider-by-provider basis.

ARGUMENT

The cellular telephone? has become a staple of

American life. There are now almost 90 million personal

wireless subscribers in the United States.» When the FCC

made the decision in 1981 to license personal wireless

services, it correctly foresaw its tremendous utility for

personal and business use. To make the benefits of this

technology available, the FCC made a policy decision to

reallocate scarce space in the electromagnetic spectrum to

provide the necessary radio frequencies. Reflecting a further

policy decision that this technology could best be made

available through market forces, the FCC allocated sufficient

bandwidth to license multiple providers in each geographic

area. In re Cellular Communications S$ S.,86F.C.C.2d 469,

474-482 (1981), reh’g denied, In re Advanced Mobile Phone

Serv., Inc. North-West Telephone Co. & TE Mobilenet of

Milwaukee, Inc., 1986 WL 292526 (F.C.C. Jan. 6, 1986).

These policy decisions 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

. The term “cellular” has both a generic and technical meaning.

Generically, it refers to all forms of personal wireless services provided

. Fed. Communications Comm’n, Annual Report and Analysis of

Competitive Market Conditions with Respect to Commercial Serv., FCC

00-289, at 5-6 (2000).

3

deployment of new telecommunications technologies.”

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

Stat. 56.

Despite the popularity of personal wireless services,

however, providers soon encountered local opposition to the

facilities necessary to provide service. Land use applications

for such facilities were subject to interminable delays and

denied for pretextual reasons. This situation threatened to

thwart the development of the facility networks necessary for

efficient utilization of the frequencies dedicated to personal

wireless services. See H.R. Rep. No. 104-204, at 94,

reprinted in 1996 Code Cong. & Admin. News, at 61.

In response, in the TCA, Congress preempted certain

conduct on the part of local authorities considering

applications for personal wireless facilities, and provided for

denials of such applications to be reviewed in federal court.

47 US.C. § 332(cX7)(BXv). The TCA requires that

applications for cellular facilities be resolved in a reasonable

period of time. § 332(c)(7)(B){ii). Denials cannot be based

on the environmental effects of radio frequency emissions so

long as the facility complies with emission regulations.

§ 332(c)(7)(B)(iv). Local authorities cannot unreasonably

discriminate among providers of functionally equivalent

services. § 332(c)(7)(B)G)(I). Decisions denying an

application must be in writing and supported by substantial

evidence. § 332(c)(7)(B){iii). The TCA further includes the

prohibition restriction, which provides that: “the 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.” § 332(c)(7)(B)(G)(ID).

In the TCA, Congress sought to preserve a role for

local authorities in siting personal wireless facilities while

ensuring that parochial interests would not frustrate national

telecommunications policy. 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.”). The

prohibition restriction plays a key role in striking this

balance. By mandating the availability of service, it seeks to

ensure that the ultimate question in land use proceedings is

not whether services should be available but where the

necessary facilities should be located.

A. The Petition Should Be Granted to Remedy

the Lack of Consistent Interpretation of

the Prohibition Restriction.

Judicial interpretation of the prohibition restriction

has been anything but consistent. The Fourth Circuit has

applied a particularly restrictive interpretation, holding that

an individual zoning decision could not violate the

prohibition restriction, as in the Fourth Circuit’s view the

provision applies only to general bans or blanket

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

Virginia Beach, 155 F.3d 423, 429 (4 Cir. 1998). Under this

view, unless a local authority is impolitic enough to

articulate an express ban on personal wireless facilities, the

prohibition restriction becomes a dead letter. More recently,

in 360 ications Co. of lottesville_v.

Board of isor marl , 211 F.3d 79, 87

(4 Cir. 2000), another panel of the Fourth Circuit, while

rejecting standards advanced by the Second and Third

Circuits, indicated in dicta that there might be egregious

circumstances in which something less overt than an express

ban might rise to the level of a prohibition.

The other circuits which have considered this issue

have recognized that since regulation of land use occurs in

the context of decisions on individual applications, the

prohibition restriction should be given broader scope than

provided in Virginia Beach. In Town of Amherst, N.H. v.

Omnipoint Communications Enter., Inc., 173 F.3d 9 (1* Cir.

1999), the First Circuit acknowledged that an individual

denial could violate the prohibition restriction if the

circumstances demonstrated “such fixed hostility by the

Board that one can conclude that further applications would

be useless.” Id. at 14. The Second Circuit also recognized

the flaws inherent in the Virginia Beach interpretation, but

approached the issue from a different perspective. Whereas

the First Circuit approach looks to the totality of

circumstances, including any history of other denials, the

Second Circuit approach looks to the particulars of a specific

application. 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.

The Third Circuit addressed the prohibition issue in

two opinions at the end of 1999. In Cellular Tel. Co. v.

Zoning Bd. of Adj. of Ho-Ho-Kus, 197 F.3d 64 (3™ Cir.

1999), the Third Circuit adopted an approach that looks to

the practical effect of the denial on subscribers of personal

wireless services. It 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.” Id. at 70. Without defining all of the

potentially relevant factors, the Third Circuit indicated that a

gap would be significant where, due to its size and/or

population density and/or traffic volume, the gap would

impact a large number of subscribers. Id. at 70 n.2. It further

held that the prohibition restriction would be violated if a

local authority denied an application for the least intrusive

means of filling a significant gap, based on findings made de

novo by the reviewing court, without deference to the

factfinding of the local authority. Id. at 71.

In APT Pittsburgh Ltd. P’ship v. Penn Township, 196

F.3d 469 (3 Cir. 1999), another panel of the Third Circuit

applied the same basic interpretation of the prohibition

restriction set forth in Ho-Ho-Kus, only to undermine its

efficacy by engrafting upon it what is referred to in

Omnipoint’s petition as the “all Carriers” standard. This

standard requires that a provider challenging a denial on

prohibition grounds must “include evidence that the area the

new facility will serve is not already served by another

provider.” Id. at 480. In so doing, APT gave an expansive

reading to dicta in Willoth, 176 F.3d at 643, suggesting that

if one carrier provided sufficient coverage to an area

(without any discussion of what was meant by “sufficient”),

a prohibition claim might be available only to the first

provider to enter that area. In the case that is the subject of

the instant petition, Omnipoint Communic tions Enter., L.P.

v. Newtown Township, 219 F.3d 240 (3 Cir. 2000), a third

panel of the Third Circuit applied the APT standard and held

that a provider attempting to establish a prohibition must

? While the opinion in APT Pittsburgh Ltd P’ship v. Penn

Township was filed eleven days prior to Cellular Tel. Co. v. Zoning Bd.

Adj. of Ho-Ho-Kus, the APT decision refers to the Ho-Ho-Kus decision’s

holding on the prohibition point. See APT, 196 F.3d at 475.

7

show that the area the proposed facility would serve is not

already served by another provider.

In sum, in the First Circuit, a prohibition is

established through proof of circumstances that it is unlikely

that any application would be approved. In the Second

Circuit, the prohibition restriction is violated by the denial of

an application for the least intrusive means to fill a

significant gap, with a suggestion (without any definition of

“significant” or “sufficiently”), that there must also be a

showing that no other provider sufficiently covers that gap.

The Third Circuit has adopted the basic Second Circuit least

intrusive means/ significant gap approach and articulated

factors defining what is a significant gap, but has engrafted

on this the “all carriers” requirement. The Fourth Circuit has

required proof of an express ban or policy, with a suggestion

that in some egregious case something like the First Circuit’s

circumstances test might suffice.

In these and other circuits, there are decisions

following Virginia Beach, Amherst, Willoth, Ho-Ho-Kus,

and/or APT. See, e.g., Airtouch Cellular v. City of El Cajon,

83 F. Supp. 2d 1158, pad ese (S.D. Cal. 2000) (following

APT); Cellular Tel. ing Bd. of Adj. of n

Park, 90 F. Supp. 2d $37, 560-61 (D.N.J. 2000) (following

Ho-Ho-Kus); Omnipoint Communications MB Operations,

LLC v. Town of Lincoln, 107 F. Supp. 2d 108, 118 =

Mass. 2000) (following Amherst and Ho-Ho-Kus); SNE

Cellular, Inc. v. Angell, 99 F. Supp. 2d 190, 197 Sat

2000) (following Amherst); 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 Beach); Nextel Partners of Upstate |

N.Y., Inc. v. Town of Canaan, 62 F.Supp. 2d 691, 697 |

ee ee

(N.D.N.Y. 1999) (following Willoth); Sprint Spectrum, L.P.

v.B f n mmn’rs of n , 59 F.

Supp. 2d 1101, 1109 (D. Colo. 1999) (following Amherst).

This confusion is not only problematic for TCA cases

currently in litigation, but also for the thousands of

applications currently before local land use boards. Given

the importance of the issue and the confusion associated with

it, the situation cries out for a definitive resolution.

B. The Petition Should Be Granted To

Correct Erroneous Interpretation of A Key

Statutory Provision.

The need for a definitive determination is even more

acute because the standard adopted by the Third Circuit is

wrong on the facts, wrong on the law, and directly in conflict

with the policies underpinning the establishment of wireless

service and articulated in the TCA itself The facility

networks of different providers in an area are not identical.

This leads to inevitable situations where service is available

to subscribers of one provider in areas that are significant

gaps in the networks of other providers.” In such

circumstances, the Third Circuit’s Standard denies the

existence of a gap, on the assumption that the availability of —

service by one provider in that area is sufficient. This

assumption ignores the fact that, except in very limited

circumstances, ri f one provider cannot receive

ice thr the _faciliti f another provider As a

result, the denial of an application in an area where only one

provider has adequate coverage will result in the prohibition

of service to subscribers of all other providers.

. See In re Revision of Rules to Ensure Compatibility with

911 ECS, 14 FCC Red. 10,954, 9 6 (June 9, 1999) (describing

effects of gaps in a provider's network).

9

There are several technical reasons why subscribers

of one provider cannot receive service through the facilities

of another provider. First, providers operate on different

frequencies. There are three functionally similar but

technically different. types of personal wireless service:

cellular, PCS and SMR. In re Revision of E911 ECS, 14

FCC Rcd. 10,954, at § 3. As a matter of federal policy

favoring competition, in most areas there are competing

providers for each type of service. Each type of service has

been allocated a different frequency range, and each provider

has been assigned different sets of channels within that

range.

There are also differences between analog and digital

service. Cellular providers initially utilized an analog

format, although in some areas cellular providers now offer

analog and digital service side-by-side. PCS and SMR are

exclusively digital. Id. Analog-only phones (which are still

in service) cannot process digital signals, and digital-only

phones cannot process analog signals.

Finally, digital providers use a _ variety of

incompatible formats for modulating their signals including

GSM, CDMA, TDMA, and IDEN. Current phones

programmed in one format cannot process _ signals

transmitted in another. Id. at | 35 n47. For example, if

Omnipoint uses a GSM format and Sprint uses a CDMA

format, even though Omnipoint and Sprint are both PCS

providers, their subscribers will not be able to receive service

from each others’ networks.

There are minor exceptions to the general rule that

subscribers to one provider cannot receive service from the

facilities of another. These exceptions prove the general rule

10

that one provider is insufficient to provide service to an area.

In areas where there are two analog cellular providers (the

“A” provider and the “B” provider), subscribers with the

proper phones who know how to do so can, with difficulty,

program their phones to receive the analog signal of either

carrier.° This option results in substantial roaming charges

in instances where the phone locks onto the signal of a

provider other than the subscriber’s provider. Even when it is

possible to do so, using the facility of another provider

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 both the Second and Third Circuit tests.

See Ho-Ho-Kus, 197 F.3d at 70 (citing Willoth, 176 F.3d at

643). It is also limited to instances of a cellular subscriber

accessing the analog signal of another cellular provider. It

will not permit a cellular subscriber to receive digital cellular

service from another cellular provider, or from a PCS or

SMR provider, nor will it permit PCS or SMR subscribers to

receive service from a cellular provider. In re Revision of

911 ECS, 14 FCC Rcd. 10,954, at 935.”

6

* Overriding 2 phone’s A/B programming in this manner is

sufficiently impractical and cumbersome that the FCC has described the

prospects of most subscribers doing so as theoretical. In re Revised E911

ECS, 14 FCC Red. 10,954, § 21. To avoid unwanted roaming charges,

most subscribers’ phones are programmed in “A” only or “B” only mode.

Id. at {{] 21-26 (explaining need for special automatic routing of 911 calls

between “A” and “B” providers).

: Using a “dual band” phone, it is possible for some PCS

subscribers to receive service from certain cellular providers, but only if

an intercarrier agreement is in place between the providers. Even in such

circumstances, a subscriber will not be able to maintain a connection

when moving between the PCS and cellular networks.

11

A second exception is limited to 911 calls. Analog

cellular phones entering the market as of February 13, 2000,

are required to automatically override an “A” only or “B”

only setting to permit a 911 call. 47 C.F.R. § 22.921 (1999).

This increases the chance of a 911 call going through in

areas where the analog signal of a cellular subscriber’s

provider is not strong enough for reliable service. It is also

intended to provide 911 service in circumstances in which,

due to call volume, the subscriber’s provider does not have a

channel available to carry the 911 call.* In re Revised E911

ECS, 14 FCC Red. 10,954, at 9 44. Because this feature is

limited to 911 calls made on new analog cellular phones,

however, id. at J 2, it would not benefit users in an area

served only by a provider of digital personal wireless

services. If, for example, the only provider in an area is an

SMR carrier, application of the Third Circuit’s standard

would prohibit all cellular and PCS providers (and SMR

providers using different modulation formats) from erecting

the facilities necessary for their subscribers to receive 911

service.

Both Congress and the FCC have placed a premium

on making 911 service available to all subscribers. See, e.g.,

Wireless Communications and Public Safety Act of 1999,

Pub. L. No. 106-81, 113 Stat. 1286 (1999) (articulating

public policy in favor of “the construction and operation of

seamless, ubiquitous, and reliable telecommunications

Limiting an area to service by one provider would lead to

Capacity problems for that provider for both 911 and non-emergency

calls, increasing the likelihood that even that provider’s own subscribers

will be blocked from receiving service. It would also be wasteful, as all

but one set of the frequencies allocated for personal wireless service

would go unused in such an area, in contravention of federal policies

seeking to ensure efficient use of the electromagnetic spectrum. 47

U.S.C. § 301.

12

systems” as a means of providing 911 service); In the Matter

of Revision of the Commission’s Rules to Ensure

mpatibility With Enhanced 91] Emergen allin i‘

12 F.C.C_R. 22,665 (1997); 47 C.F.R. § 20.18 (requiring all

providers to process wireless 911 calls made on a phone

compatible with the provider’s radio frequency protocol and

to provide Enhanced 911 call location services); In_re

Revised E911 ECS, 14 FCC Red. 10,954 (requiring

automatic A/B access for 911 analog cellular calls). For this

reason alone the Third Circuit’s standard is problematic, as it

is inconsistent with Congressional intent and the federal

regulatory scheme. It is also a threat to public health and

safety, as subscribers of the denied applicant will not have

access to 911 service in the affected area.

The standard also directly conflicts with the

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

consumers and their reception of uninterrupted wireless

telephone service.” Newtown Township, 219 F.3d at 244.

The fact that service is available to subscribers of another

provider is irrelevant to subscribers of the provider seeking

to fill the gap. A subscriber of a provider without coverage

in an area is “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 the consumer is that he or she

cannot use their phone. In this regard it is important to note

that, as a practical matter, the prohibition restriction comes

into play when a local decision not subject to challenge

under other provisions of the TCA leaves a significant gap in

a provider’s network under circumstances in which it is

reasonable to assume any other application to fill this gap

will meet the same fate. If relief under the prohibition

restriction is not available in these circumstances, no relief is

13

available. The applicant’s subscribers must simply do

without service in the affected area.

Congress could not have intended the prohibition

restriction to be interpreted in a manner that would deem it

sufficient that there be only one provider in an area.” State

and local authorities have no authority to regulate market

entry by providers of personal wireless services. 47 U.S.C.

§ 332(c)(3)(A). The federal regulatory scheme for personal

wireless service has always rested upon the availability of

multiple providers in each area. In establishing cellular

service, the FCC considered and rejected licensing schemes

in which one provider would be deemed to provide sufficient

service to an area. In re Cellul mmuni

F.C.C.2d at 471-72. It preempted state licensing schemes

which might have the effect of finding a need for only one

cellular carrier in an area, finding that “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.” Ic. at 505. It also noted that “the inability of

any cellular licensee to provide service could significantly

. Section 253(a) of the TCA contains language, similar to the

prohibition restriction, that prohibits 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.”

The FCC has, consistently, interpreted this language to “proscribe state

and local legal requirements that prohibit all but one entity from

providing ‘elecommunications services in a aos state or locality.”

In the Matter of Silver Star Tel. Co.. Inc. Petition for Preemption and

Declaratory Ruling, ae FCC 15639, 4 38 (1997). See also Public Util.

Comm'n of Tex. et al. Petitions for Declaratory Ruling and/or

of 1995, 13 FCC Red. 3460, 3480 § 41 (1997) (section 253 prohibits state

or local requirements that have the practical effect of prohibiting an

entity from providing service).

14

inconvenience the public and cause a huge amount of

spectrum to be unused.” Id. at 502.

Reflecting this basic assumption that there would be

multiple providers throughout a service area, the regulations

governing cellular carriers provide that “{cJellular system

licensees must provide cellular mobile radiotelephone

service upon request to all cellular subscribers in good

Standing, including roamers, while such subscribers are

located within any portion of the authorized cellular

geographic service area...” 47 C.F.R. § 22.901. (emphasis

added). The FCC further reinforced this policy of multiple

providers by subsequently taking sufficient bandwidth away

from other uses to permit up to six PCS providers and at

least one SMR provider per market area. See 47 CFR.

§ 24.1 (allocating bandwidth for PCS service); 47 CFR.

§ 90.661 (allocating bandwidth for SMR service). It did so

out of a conviction that the then current availability of

service from two providers was insufficient to provide the

desired competition and availability of service. See In re

Implementation of Section 6002(B) of ORBA 1993, 10 FCC

Red. 8844, | 4 (1995). See also H.R. Rep. 111, 103d Cong.

1* Sess. 261-62 (1993) (goal of amendments to 47 US.C. §

332(c) in Omnibus Budget Reconciliation Act of 1993, Pub.

L. No. 103-66, Title IV, § 6002(b), is to ensure “increased

competition and subscriber choice” with respect to personal

wireless services).

The assumption that it is sufficient that only one

provider service an area is antithetical to the personal

wireless regulatory scheme, which has consistently rejected

the notion that one provider is sufficient. When it enacted

the TCA in 1996, Congress can be presumed to have been

familiar with this understanding of what was encompassed

by “personal wireless services.” Indeed, the regulatory

15

scheme is completely consistent with Congress’ stated intent

in enacting the TCA to secure better prices, higher quality

services, and encourage rapid deployment of new

telecommunications technologies by promoting competition

and reducing regulation. Telecommunications Act of 1996,

Pub. L. No. 104-104, 110 Stat. 56.

The Third Circuit’s holding that the prohibition

restriction permits the prohibition of service to subscribers of

other providers, so long as subscribers of one provider are

able to receive service, misinterprets the statute. It does so to

the detriment of the very consumers Congress was trying to

protect. For the prohibition restriction to have any efficacy,

it must be applied in a manner that permits each provider to

erect the facilities necessary to provide service to its

subscribers.

CONCLUSION

For the reasons set forth above, amici curiae AT&T

Wireless Services, Inc., Nextel Communications, Inc. and

SBC Wireless, Inc., respectfully request that the Petition for

Writ of Certiorari of Omnipoint Communications

Enterprises, L.P., be granted.

Respectfully submitted,

” Thomas F. Cam

(Counsel of Record)

Kenneth ; Wilbur

Counsel for amici curiae

AT&T Wireless Services, Inc.,

Nextel Communications, Inc.

and SBC Wireless, Inc.

Drinker Biddle & Shanley, LLP

500 Campus Drive

Florham Park, NJ 07932-1047

973-360-1100

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