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

Fee Se

Y 8

No. 00-353

—_—_—_—_—___—_———X—“:_

Obiu2 ann

IN THE

Supreme Court of the United States

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 BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE OF

SPRINT SPECTRUM, L.P.

IN SUPPORT OF PETITIONER

Of Counsel PAUL D. CLEMENT -

WILLIAM T. SMITH Ill (Counsel of Record)

LAW DEPARTMENT, SPRINT JEFFREY S. SPIGEL

8140 Ward Parkway KING & SPALDING

Kansas City, MO 64114 1730 Pennsylvania Ave., N.W.

(913) 624-6843 Washington, DC 20006

(202) 737-0500

October 5, 2000 Counsel for Amicus Curiae

WiLSON-EPES PRINTING COo., INC. - (202) 789-0096 - WasnHinGcTon. D. C. 20001

ten

ERIE DOPED She ad oe a CA - “

a Da ee ee

tt i Sat eB eg i a te aera RT

IN THE

Supreme Court of the United States

No. 00-353

OMNIPOINT COMMUNICATIONS ENTERPRISES, L.P..,

Petitioner,

Vv.

NEWTCWN 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

BRIEF AMICUS CURIAE

Sprint Spectrum, L.P. (“Sprint PCS") hereby respectfully

moves, pursuant to Rule 37.2 of the Rules of this Court, for

leave to file the attached brief as amicus curiae. Although

Petitioner has consented to the filing of this brief,

Respondents have not consented.

Sprint PCS provides high quality wireless telephony

through a nationwide network utilizing state-of-the-art

CDMA all-digital technology. To provide its customers with

a seamless national network, Sprint PCS needs to build out a

network of wireless infrastructure. The Telecommunications

Act of 1996 (“the Act”) limits the ability of local authorities

to block construction of this infrastructure. Sprint PCS has

been involved in substantial litigation concerning the

meaning of the Act and has an interest in ensuring that the

federal courts correctly interpret the Act.

Sprint PCS believes that the attached brief will assist the

Court in its consideration of this case. Although Sprint PCS

shares an interest in a correct interpretation of the Act with

other wireless providers, Sprint PCS has a unique perspective

on this case. As the court below indicated, Sprint PCS's

existing facilities enable it to serve its customers in the

locality directly affected by the decision below. See Pet.

App. at 10a. Accordingly, the decision below gives Sprint

PCS an advantage in serving that locality. However, the

attached brief explains how the need for seamless national

wireless coverage makes such localized advantages illusory.

In addition, the decision below appears to rest on mistaken

assumptions about wireless technology. In particular, the

decision below appears to assume that wireless technology is

fungible so that if a consumer using one technology can place

a call, all wireless consumers can place a call. Sprint PCS its

in a position to correct these mistaken assumptions.

For the foregoing reasons, Sprint PCS respectfully seeks

leave to file the attached brief.

Respectfully submitted,

Of Counsel PAUL D. CLEMENT

WILLIAM T. SMITH III (Counsel of Record)

LAW DEPARTMENT, SPRINT JEFFREY S. SPIGEL

8140 Ward Parkway KING & SPALDING

Kansas City, MO 64114 1730 Pennsylvania Ave., N.W.

(913) 624-6843 Washington, DC 20006

: (202) 737-0500

October 5, 2000 Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

FABRE GP AT TIGR SiGe pec csctinsanscnscanaiectecsabenetabionees il

INTEREST OF AMICUS CURITAE ............:ccccccceseseseees l

SUMMARY OF ARGUMENT .....00........ceeeeseeereeeeee. on l

PT EE sateiniininipiteantinssnnonnnnvnpcniehbanaieainensniniaos 3

I. THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF OTHER

CIRCUITS IN BOTH BROAD TERMS AND

SE CRS mae | 5. Sree en 3

ll. THE DECISION BELOW UNDERMINES

THE CORE PURPOSES OF THE ACT AND

THE SPECIFIC PROVISIONS ADDRESS-

ING LOCAL ZONING AUTHORITY .............. 9

A. The Decision Below Contradicts the Act's

Overriding Pro-Competitive Purpose .......... 9

B. The Decision Below Undermines the

Specific Provisions Directed at Siting

Issues and Local Zoning Authority .............. 14

Ill. THE ISSUES RAISED BY THE DECISION

‘BELOW MERIT THIS COURT’S IMME-

Ae SES 6 SAPS 8 OUI Y cxtescinveserrisaccanssinetobneeioinins 16

Se RII claslaicsiiciovausievtaanngnacdiaheacenanpbesbansdbepinnenans 18

(i)

il

TABLE OF AUTHORITIES

Cases: Page

360" Commun. Co. v. Board of Supervisors of :

Albemarle Cty., 211 F.3d 79 (4th Cir. 2000) ..... 4,7

APT Pittsburgh L.P. v. Penn Township, 196 F.3d

SOP Cs RU acictisygccennicntat etchant aig passim

AT&T Commun. Sys. v. Pacific Bell, 203 F.3d

$ EBS Ce is BR aiciticinetetennsciinakcuaindiad 10

AT&T Corp. vy. lowa Utils. Bd., 525 U.S. 366

CFP i re Pesnsdhssincpsngiah ctennenasabianiadeliionbanmmiae Mattias 10, 17

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

City of Virginia Beach, 155 F.3d 423 (4th Cir.

AT&T Wireless PCS. Inc. v. Winston-Salem

Zoning Bd. of Adjustment, 172 F.3d 307 (4th

OW. St accdincousiosiontasimaniaiadnus .oieheiidaaeicas 6

BellSouth Mobility, Inc., v. Gwinnett Cty., 944 F.

SUP. FES IND. Ga PODGY avvcsnscscessencinnedeesincnne 10, 15

Cellular Tel. Co. v. Zoning Bd. of Adjustment of

the Borough of Ho-Ho-Kus, \97 F.3d 64 (3d

esas: WOO seinink hlnosersiceuiicdinccblizunla iihinadbatasapaliannt eto 3.9

GTE Service Corp. v. FCC, 120 S. Ct. 2214

SND i pidcivsniciineciomenistpactchécnitghedasnieiicinipinabieiiaie 17

Petersburg Cellular Partnership vy. Board of

Supervisors of Nottoway Cty., 205 F.3d 688

A ae hic hac a Si aa 6, 14

Reno v. American Civil Liberties Union, 521

FRE OE gg SR PCE NC TGR A GALS ME TO 5

SBA Commun., Inc. v. Zoning Comm'n of Town

of Brookfield, No. 3:00CV0006 GLG, 2000

WL 1276834 (D. Conn. Sept. 6, 2000).............. 16

Sprint Spectrum L.P. v. Town of Easton, 982 F.

seeepes. SF CED. Plans, LODE ois ciccsdebcsetsissnrcicccden 15, 16

Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630

Fg Sey, RRM SAUNT PP Eira 27 5h eau iaaO ON passim

TABLE OF AUTHORITIES

‘ Page

Town of Amherst v. Omnipoint Commun. Enters.,

Inc., 173 F.3d 9 (Ast Cir. 1999).......eseeseeees 4,5,17, 18

U.S. West Commun. v. MFS Intelenet, Inc., 193

F.3d 1112 (9th Cir. 1999) 2.2.2... eeceeeeeeeeeseereeeenees 10

United States v. Western Elec. Co., 890 F. Supp.

1 (D.D.C. 1995) .........cccccsscsecscerecersesrossnesecereensens 12

Statutes and Legislative Materials:

47 U.S.C. § 27 1(D)(3) .....sceeeeeereeseeeeeseecsseeeeeneennens 12

AT U.S.C. § 332( CMT) BID)... eeereeereeerererneennees 15

47 U.S.C. § 332(c)(7)(B)U)UD).......-eceereeeenereeeereneees passim

AT U.S.C. § 332(C)(7)(B)(i1)..2.-seeecerseesseneensenseenenes 15

AT U.S.C. § 332(C)(7 (BCI) «2... eceeeeeceereeeeernenneeeee 6, 15

47 U.S.C. § 332( CMT )(BV)...ccccesccesrcceereeereessesenes 17

AT U.S.C. § 332( CMB)... .eeseeeereceereeereesereserseennnennes 12

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

CVDOG) o.ccsincncececssiepsastebescatensscnassnaccetscusesepencevonsbees 9, 14

Cong. Rec. HI1S1 (Feb. 1, 1996) .......sseeseeeeeeseees 10

H.R. Conf. Rep. No. 104-458 (1996)... 10

H.R. Rep. No. 104-204 (1995).......:sssecssssesereeneneens 16

Other Authorities:

The White House: Remarks by the President in

Signing Ceremony for the Telecommuni-

cations Act Conference Report, FDCH Federal

Department and Agency Documents (Feb. 8,

DOIGD os ivcsvarsavdesshocesicssonsstesecsensercnecineesonnchonmirernes 11

INTEREST OF AMICUS CURIAE

Sprint Spectrum, L.P. (“Sprint PCS”) provides high quality

wireless telephony through a nationwide network utilizing

state-of-the-art CDMA all-digital technology. To provide its

customers with a seamless national network, Sprint PCS

needs to build out a network of wireless infrastructure. The

Telecommunications Act of 1996 (“the Act”) limits the

ability of local authorities to block construction of this

infrastructure. Accordingly, Sprint PCS has an interest in

ensuring that the federal courts correctly interpret the Act.

Although Sprint PCS shares this interest in a correct

interpretation of the Act with other wireless providers, Sprint

PCS has a unique perspective on this case. As the court

below indicated, Sprint PCS has the capacity to serve its

customers in the Newtown Township area through its existin

facilities. See Pet. App. at 10a. Accordingly, the decision

below gives Sprint PCS an advantage in Newtown. However,

the market for wireless services is national, not local. As a

result, Sprint PCS’s interest in ensuring a correct

interpretation of the Act nationwide transcends any benefit it

might receive in Newtown. For this reason, Sprint PCS files

this brief urging the Court to grant certiorari.'

SUMMARY OF ARGUMENT

The decision below conflicts with the law of other circuits

and the letter and spirit of the Telecommunications Act of

1996. By granting preferential status to wireless carriers with

existing facilities in specific localities, the decision below

prevents new wireless carriers from building effective and

competitive national wireless networks.

' Petitioner has consented to the filing of this brief, but Respondents

have not. No counsel for a party_authored this brief in whole or in part,

and no person or entity, other than amicus curiae and its counsel, made 2

monetary contribution to the preparation and submission of this brief.

. :

The decision below conflicts with the law of other circuits

not just in general approach, but on three distinct issues that

are critical to the operation of the cellular siting provisions of

§ 704 of the Act. First, the circuits are split as to whether

individual siting decisions, as opposed to general munici-

pal policies, can “prohibit or have the effect of prohibiting

the provision of personal wireless services.” 47 U.S.C.

§ 332(c)(7)(BXUD (the anti-prohibition provision”). Sec-

ond, the circuits differ over the amount of discretion that local

zoning officials retain under the Act. Third, the circuits are

split as to whether the presence of a competitor providing

service from existing facilities in a locality precludes a new

entrant from demonstrating that a zoning decision has “the

effect of prohibiting the provision” of wireless services. /d.

By granting certiorari, this Court could resolve all three splits

and establish a uniform national rule for a wireless industry

that is nationwide in scope. *

The decision below also conflicts with the text and

purposes of the Act. The Act aims to promoie competition

and spur the deployment of new technologies (which, in turn,

facilitate enhanced competition). However, by granting pref-

erential status to existing wireless providers, the decision

below protects a patchwork of local wireless monopolies

using established technologies. The decision also permits

local zoning officials to limit competition and decide how

many competitors may serve a local community. The Third

Circuit’s approach cannot be squared with the text of the Act,

which proscribes discrimination among carriers and local

zoning decisions that “prohibit or have the effect of

prohibiting the provision of personal wireless services.” /d.

Finally, the circuit splits posed in Omnipoint’s Petition

merit expeditious consideration by this Court. Tolerance of

divergent views among the circuits will frustrate the Act's

objectives. The Third Circuit's decision stands as an obstacle

to the development of seamless and competitive nationwide

3

wireless networks. Wireless providers cannot offer truly

nationwide service if they cannot offer seamless service in

Pennsylvania, New Jersey, and Delaware. This Court should

grant certiorari to resolve the differing interpretations of

§ 704.

ARGUMENT

I. THE DECISION BELOW CONFLICTS WITH

THE DECISIONS OF OTHER CIRCUITS IN

BOTH BROAD TERMS AND ON THREE

SPECIFIC ISSUES

As Omnipoint demonstrates in its Petition (Pet. at 7-11),

the circuits have taken a number of different approaches in

interpreting the siting provisions in § 704 of the Act.

However, a focus on the general approaches of the various

circuits obscures the conflicting conclusions they have

reached on a number of important and distinct issues raised

by the siting provisions. Indeed, the circuits are split on three

main issues, and Omnipoint’s Petition provides a vehicle to

resolve all three.

First, the circuits have split over whether an individual

adverse siting determination can violate the statutory

prohibition on zoning regulations that “prohibit or have the

effect of prohibiting the provision of personal wireless

services.” 47 U.S.C. § 332(c)(7)(B)(i)(ID. The Fourth Cir-

cuit initially took the position that a single adverse decision

could not have the effect of prohibiting the provision of

personal wireless services. See AT&T Wireless PCS, Inc. v.

City Council of the City of Virginia Beach, 155 F.3d 423,

428-29 (4th Cir. 1998) (Luttig, J.). The Fourth Circuit held

that the anti-prohibition protection of 47 U.S.C.

§ 332(c7)(B)(i)IT) “only applies to ‘blanket prohibitions’

_ and ‘general bans or policies,’ not to individual zoning

decisions.” /d. at 428 (quoting the district court opinion).

4

The First Circuit took a different view in Town of Amherst

v. Omnipoint Commun. Enters., Inc., 173 F.3d 9, 14 (1st Cir.

1999). In Amherst, the First Circuit recognized that an

individual adverse zoning decision could reflect a broader

policy prohibiting the siting of wireless infrastructure. See id.

Although the First Circuit acknowledged the Fourth Circuit’s

contrary approach in Virginia Beach, it dismissed the

difference as “more one of language than substance.” /d.

Presumably, this comment reflects the fact that although the

First Circuit will examine an individual adverse deter-

mination for evidence of a general policy, it still requires a

general policy of prohibition. The Fourth Circuit appeared to

take a similar view in 360° Commun. Co. v. Board of

Supervisors of Albemarle Cty., 211 F.3d 79, 86 (4th Cir.

2000). The court reaffirmed that “case-by-case denials of

permits for particular sites cannot, without more, be construed

as a denial of wireless service.” /d. (citing Virginia Beach).

Nonetheless, the court left open the possibility that an

individual denial could evidence a general policy of

prohibition. See id. at 86-87. —

Whatever the exact degree of conflict between the First and

Fourth Circuits, the Second Circuit clearly takes a different

view. The Second Circuit rejected the Fourth Circuit's

position as “untenable,” in part because it “would essentially

convert subsection B(i)(ID) into a simple directive to consider

applications on a case-by-case basis.” Sprint Spectrum, L.P.

v. Willoth, 176 F.3d 630, 640 (2d Cir. 1999). The Second

Circuit also noted that: ‘“Construing subsection B(i)(II) to

apply only to general bans would lead to the conclusion that,

in the absence of an explicit anti-tower policy, a court would

have to wait for a series of denied applications before it could

step in and force a local government to end its illegal boycott

of personal wireless services.” Jd. at 640-41. Finally, the

Second Circuit concluded that “[a]lthough attractively simple,

such an interpretation is contrary to the TCA’s intent to

‘encourage the rapid deployment of new telecommunications

5

technologies.’” Jd. at 641 (quoting Reno v. American Civil

Liberties Union, 521 U.S. 844, 857-58 (1997)).

The Third Circuit appears to follow the Second Circuit on

this issue and has observed that “local officials must always

ensure that neither their general policies nor their individual

decisions prohibit or have the effect of prohibiting personal

wireless services.” Cellular Tel. Co. v. Zoning Bd. of Adjust-

ment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 70 (3d Cir.

1999). Indeed, in the decision below, the Third Circuit took

the extreme position that even a blanket prohibition on new

cell sites would not violate the Act, as long as established

providers are offering wireless service through existing

facilities. See Pet. App. at 10a n.15. In other words, local

officials do not violate the Act when they impose a blanket

ban on new services and protect existing providers.

Accordingly, while the Fourth Circuit analyzes general bans

to the exclusion of individual zoning decisions, the Third

Circuit appears to analyze individual decisions to the

exclusion of general bans.

Second, the circuits differ on the broader question of the -

extent to which the Act restricts the authority of local zoning

officials. The siting provisions of the Act represent a

“refreshing experiment in federalism.” Amherst, 173 F.3d at

17. The Act expresses the strong federal interest in deploying

wireless technology, while respecting the traditional role local

authorities have played in zoning decisions. Rather than

having the strong federal interest simply override the local

role, as initially proposed, Congress allowed municipalities to

retain local authority over zoning decisions provided those

decisions comply with federal law, including the requirement

that local regulations not have the effect of prohibiting

personal wireless services. The circuits differ over what au-

thority the Act preserves for local zoning officials.

The Fourth Circuit treats the authority of local zoning

authorities as largely unchanged by the Act. In Virginia

6

Beach, for example, the Fourth Circuit limited the application

of § 704’s anti-prohibition provision to general policies and

blanket bans because the contrary view “would effectively

nullify local authority.” 155 F.3d at 428; see also id. at 429

(noting that the Fourth Circuit rule “is necessary to avoid

destroying local authority”). A subsequent panel of the

Fourth Circuit went even further and suggested that a strict

interpretation of §704’s requirement that local zoning

authorities make their decisions in writing based on

substantial evidence, 47 U.S.C. § 332(c)(7)(B)(iii), “might

well even invite Tenth Amendment scrutiny.” AT&T Wire-

less PCS, Inc. v. Winston-Salem Zoning Bd. of Adjustment,

172 F.3d 307, 313 (4th Cir. 1999). Indeed, Judge Niemeyer,

writing only for himself, found that provision incompatible

with the Tenth Amendment. See Petersburg Cellular

Partnership v. Board of Supervisors of Nottoway Cty., 205

F.3d 688, 705 (4th Cir. 2000).

The Second Circuit (and to a lesser extent the Third

Circuit), by contrast, emphasize the strong federal interest in

deploying wireless technology. See, e.g., Willoth, 176 F.3d at

644 (“The TCA imposes limits on the authority of state and

local governments to restrict personal wireless services.”).

As a result, while acknowledging that the Act preserves a role

for local authorities, these courts have construed that role as

much more limited. Although local zoning boards retain the

authority to direct cellular companies to a feasible site that

minimizes interference with local interests, “local govern-

ments must allow service providers to fill gaps in the ability

of wireless telephones to have access to land-lines.” Jd. at

643; accord APT Pittsburgh L.P. v. Penn Township, 196 F.3d

469, 479 (3d Cir. 1999). In other words, local zoning

officials lack authority to deny access to a necessary site, and

retain authority only to direct a provider to a specific

sufficient site, if more than one site suffices.

7

—

In a recent decision, the Fourth Circuit expressly and

categorically rejected this analysis. See 360° Commun., 211

F.3d at 87. The Fourth Circuit dismissed this view as

inconsistent with the Act and as erroneously “shifting the

burden of production to the local government to explain its

reason for denying such an application.” /d.

The split of authority on this question reflects broad

disagreement over the extent to which the Act limits local

zoning authority. Continued disharmony and uncertainty

about the authority of local officials will result in significant

federal-court litigation to review the actions of local zoning

authorities. This litigation creates unnecessary friction and

threatens to undermine the Act’s “refreshing experiment in

federalism.” This Court should grant certiorari to eliminate

this friction and fix the meaning of the Act.

Third, and finally, there is a split of authority between the

Second and Third Circuits over whether § 704’s anti-

prohibition provision applies when another service provider

already offers service in the area. In APT, the Third Circuit

adopted a novel and mischievous rule that effectively reads

§ 704’s anti-prohibition provision out of the statute whenever

another carrier already provides service in an area. See 196

F.3d at 480. Specifically, APT held that “[t]he provider’s

showing on this issue will thus have to include evidence that

the area that the new facility will serve is not already served

by another provider.” /d. Such a test clearly undermines

competition. The decision below quoted this language and

remanded the case solely for application of this new test. See

Pet. App. at 9a; see also Pet. App. at 10a (“The question then

remains as to whether other providers already serve the area

at issue in this case.”’).

Although the Third Circuit purported to build its analysis

on that of the Second Circuit in Willoth, the Third Circuit in ~

fact created a split over whether another provider’s existing

service in an area precludes a violation of § 704’s anti-

8

prohibition provision. In Willoth, an analog cellular carrier,

Frontier Corporation, already served the area that Sprint PCS

sought to serve through the installation of new facilities. See

176 F.3d at 638-39 (discussing Frontier). Nonetheless,

Willoth expressly rejected the municipality’s argument that

“its earlier approval of Frontier’s application and professed

willingness to accept some level of PCS service” defeated

Sprint PCS’s claim. /d. at 640. The Second Circuit also

rejected as “untenable” the “result that once personal wireless

services are available somewhere within the jurisdiction of a

state or local government, whether by virtue of a facility

located outside or inside its borders, the state or local

government could deny any further actions with impunity.”

Id. at 641. ‘.

This case provides an ideal vehicle for resolving all three

of these circuit splits. This case allows this Court to

determine the scope of § 704’s anti-prohibition provision

(whether it covers blanket policies, individual determinations,

or both) and the extent of the authority retained by local

zoning Officials under the Act. This Court also can resolve

the question whether the presence of an existing carrier in a

locality precludes a violation of § 704’s anti-prohibition

provision. This case provides a vehicle to address all three

questions and to give invaluable guidance for numerous

wireless providers and countless municipalities across the

country.

*To be sure, the Second Circuit observed that “once an area is

sufficiently serviced by a wireless service provider, the right to deny

applications becomes broader.” /d. at 643. However, in light of the

observations quoted above and its treatment of Frontier, the Second

Circuit’s use of the phrase “sufficiently serviced” cannot be read to mean

simply the presence of one pre-existing carrier. The Third Circuit’s

decisions in this case and APT, however, make just this error in

interpreting Willoth.

9

II. THE DECISION BELOW UNDERMINES THE

CORE PURPOSES OF THE ACT AND THE

SPECIFIC PROVISIONS ADDRESSING LOCAL

ZONING AUTHORITY

The decision below threatens to deny consumers the

benefits of competition and innovative technology promised

by the Telecommunications Act. The decision thwarts these

goals by enabling local zoning boards to deny competitive

entry by new wireless providers as long as some consumers

already are able either to “connect with the land-based

national telephone network, or to maintain a connection

capable of supporting a reasonably uninterrupted network.”

Pet. App. at 10a (quoting Ho-Ho-Kus, 197 F.3d at 70). This

result conflicts with the Act’s overall purposes and the intent

of the specific provisions addressing the siting of wireless

facilities.

A. The Decision Below Contradicts the Act’s

Overriding Pro-Competitive Purpose.

The Third Circuit’s decision stymies competition rather

than encouraging it by creating a barrier to the entry of

competitive wireless providers. The Act heralded a sea

change in the structure of the telecommunications industry.

With the passage of the Act, consumers no longer would

remain beholden. to local telephone monopolies. The Act

replaced monopolies with competition that would lead to the

introduction of innovative technology, which, in turn, would

unleash further competition. As its preamble makes clear, the

Act aims “[t]o promote competition and reduce regulation in

order to secure lower prices and higher quality services for

American telecommunications consumers and encourage the

rapid deployment of new telecommunications technologies.”

Pub. L. No. 104-104, 110 Stat. 56, preamble (1996).

Moreover, as numerous courts have recognized, the Act’s

legislative history underscores these stated goals. Congress

10

designed the Act “to provide for a _ pro-competitive,

de-regulatory national policy framework designed to

accelerate rapidly private sector deployment of advanced . ...

technologies and services . . . by opening all telecom-

munications markets to competition ....” H.R. Conf. Rep.

No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N.

124, 124 (quoted with ellipses in Willoth, 176 F.3d at 637).

Indeed, this Court recognized in AT&T Corp. v. lowa Utils.

Bd., 525 U.S. 366, 371 (1999), that Congress crafted the Act

to replace “the longstanding regime of state-sanctioned

monopolies” with a competitive market structure. “States

[could] no longer enforce laws that impede competition . . . .”

Id.

Congress viewed the Act as landmark legislation designed

to revolutionize the telecommunications industry. “The [Act]

is expansive legislation designed primarily to increase

competition in the telecommunications industry.” BellSouth

Mobility, Inc. v. Gwinnett Cty., 944 F. Supp. 923, 927 (N.D.

Ga. 1996); see also AT&T Commun. Sys. v. Pacific Bell, 203

F.3d 1183, 1184 (9th Cir. 2000); U.S. West Commun. v. MFS

Intelenet, Inc., 193 F.3d 1112, 1116 (9th Cir. 1999). The Act

“is critically important because it unleashes a digital free-for-

all [which] takes down the barriers of local and long distance

and cable company and satellite, computer, software entry

into any business they want to get in. Once and for all, all

regulations are taken down.” Cong. Rec. H1151 (Feb. 1,

1996) (statement of Rep. Markey).

The President articulated a similar view of the importance

of the Act in his signing statement. He observed that the

telecommunications “revolution has been held back by

outdated laws designed for a time when there was one phone

company, three TV networks, no such thing as a personal

computer. Today, with the stroke of a pen, our laws will

catch up with our future. We will help to create an open

marketplace where competition and innovation can move as

11

quick as light.” The White House: Remarks by the President

in Signing Ceremony for the Telecommunications Act

Conference Report, FDCH Federal Department and Agency

Documents (Feb. 8, 1996).

The decision below frustrates these congressional and

presidential objectives and returns wireless markets back to

“outdated laws, designed for a time when there was one

phone company.” The decision simultaneously undermines

the Act’s twin goals of promoting competition and

innovation. The decision converts a pro-competitive law into

an obstacle to competition. Under the Third Circuit’s view,

the Act limits local authority only when “the area the new

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

Pet. App. at 9a (quoting APT, 196 F.3d at 480). In other

words, local authorities may deny a new entrant’s request to

build a wireless facility whenever the new facility would

provide competition, and the Act constrains local officials

only when a carrier is seeking to become the first and only

provider in a previously unserved area. This interpretation

cannot be squared with the Act’s pro-competitive orientation.

Indeed, the Third Circuit’s one-carrier-serves-all rule

squarely conflicts with the Act’s overall approach to wireless

service. Before the mid-1990’s, the wireless market was

essentially a regulated duopoly in which two carriers were

assigned spectrum to provide cellular service to consumers in

an area. Historically, one of the carriers was the incumbent

local exchange provider (e.g., the Bell Operating Companies)

with AT&T/McCaw Cellular often providing the alternative.

In light of their government-conferred duopoly, these wireless

Carriers operated under a number of constraints.

In 1995 and 1996, the FCC, the courts, and Congress began

to remove these restrictions. In 1995, the FCC allocated

additional spectrum for the provision of PCS telephone

service. That same year, the court with jurisdiction over the

AT&T consent decree waived the decree’s long-distance

12

prohibition under certain conditions. See United States v.

Western Elec. Co., 890 F. Supp. 1, 7-9 (D.D.C. 1995). The

Act removed most of the remaining constraints on wireless

carriers. See 47 U.S.C. §§ 271(b)(3) (creating an exception to

interLATA prohibitions); 332(c)(8) (removing general equal

access obligations for all commercial mobile radio service

providers); 332(c)(7)(B) (precluding state - and local

governments from prohibiting the deployment of competitive

wireless services).

At the same time that the courts and Congress were

removing these constraints, Congress was opening up the

wireless market to competition. During 1995 and 1996, the

government auctioned bandwidth spectrum and wireless

licenses, and private carriers built new wireless systems (PCS

and SMR). These developments transformed a duopoly into a

competitive market. Within two years, consumers began to

enjoy the benefits of this increased competition: significant

decreases in the price of wireless service, offers of minutes to

be used for any type of call (i.e., local or long distance), and

wireless Internet access.

Sprint was one of these new entrants. Beginning in 1995,

Sprint acquired new broadband PCS licenses (for which it

paid the United States nearly $3 billion) to provide wireless

services in all 50 states, the District of Columbia, Puerto

Rico, and the U.S. Virgin Islands. Although it commenced

service only three years ago, Sprint PCS already serves over

eight million customers and its state-of-the-art, CDMA, all-

digital network covers the majority of the nation’s

metropolitan areas, including more than 4,000 cities and

communities across the country.

The decision below reintroduces the bad old days of the

wireless duopoly, or perhaps worse. Under the Third

Circuit’s analysis, if one provider already serves a market

through existing facilities, local authorities can block any new

entry. Local authorities have carte blanche under the Third

13

Circuit’s opinion to set whatever level of competition they

see fit. In many communities, the decision below will have

the effect of enshrining the old duopoly carriers, although

those carriers will now operate without ihe regulatory

constraints that previously limited their ability to exploit their

market power. Moreover, in some communities, where only

one carrier has established facilities, the Third Circuit’s

regime will preclude all competition and give a carrier with

existing facilities an unregulated monopoly over wireless

service.”

The Third Circuit’s one-carrier-serves-all rule also reflects

a fundamental misunderstanding of wireless technology.

Consumers currently can choose from a number of competing

technologies that are not interchangeable or compatible. For

example, a consumer using Sprint PCS’s CDMA digital

technology cannot utilize analog infrastructure to place or

receive calls, unless the consumer happens to have a dual-

mode (analog/digital) telephone. Accordingly, the avail-

ability of analog service employing existing analog

infrastructure in a locality makes no practical difference to a

consumer with a single-mode CDMA telephone. Although

the Third Circuit purported to consider the availability of

service from the perspective of the end-user, see Pet. App. at

10a, its failure to understand wireless technology leaves many

end-users without effective service.

The decision below not only fails to understand wireless

technology, it also affirmatively undermines the Act’s in-

tent to “encourage the rapid deployment of new

> The potential ability of other carriers to pay for access to the

monopoly facilities does not eliminate this threat to competition. In some

cases, the carrier with an effective local monopoly will employ outdated

technology that will not allow other carriers’ customers to complete a call.

But even where technology does not present insuperable obstacles, access

charges allow the local monopolist to extract monopoly rents from all

customers in violation of the evident purpose of the Act.

14

telecommunications technologies.” Pub. L. No. 104-104, 110

Stat. 56, preamble (1996). By eliminating the Act’s pro-

tection in localities already served by another provider, the

Third Circuit entrenches incumbent wireless carriers. In the

rapidly developing wireless market, protecting the incumbent

means favoring outmoded technologies, such as analog

cellular. As technology continues to develop, the decision

below will continue to disadvantage innovative technologies

and artificially extend the life of outdated technologies that

have little to offer besides existing tower space.”

B. The Decision Below Undermines the Specific

Provisions Directed at Siting Issues and Local

Zoning Authority.

Section 704 of the Act specifically addresses wireless

siting issues and expresses the strong federal interest in

ensuring the deployment of competitive wireless services. As

the Second Circuit observed in Willoth, Congress enacted §

704 “[iJn furtherance of” the Act’s overall goals of promoting

competition -and the rapid deployment of advanced

technologies. 176 F.3d at 637; see also Petersburg Cellular,

205 F.3d at 697 (Niemeyer, J.) (“The Telecommunications

Act of 1996 seeks to promote a more efficient wireless

communications system for consumers, and to this end, it

facilitates the construction of communications facilities.”’).

“Although the TCA ‘does not completely preempt the

authority of state and local governments to make decisions

* It is no answer to suggest that local authorities will not allow .

inefficient monopolies because local residents would bear the brunt of

inefficient service and monopoly prices. The whole theory underlying the

Act’s partial pre-emption of local zoning authority is that while local

residents bear the full cost associated with any new facilities, they do not

enjoy the full benefits of enhanced wireless services, which they share

with cellular users who have no voice in local affairs. Section 704

corrects this imbalance, while the Third Circuit’s decision exacerbates it.

15

regarding the placement of wireless communications service

facilities within their borders,’ it does impose significant

limitations on this authority.’” Sprint Spectrum L.P. v. Town

of Easton, 982 F. Supp. 47, 49 (D..Mass. 1997) (quoting

BellSouth Mobility, 944 F. Supp. at 927). In particular, the

Act forbids discrimination in the zoning process among

wireless carriers, 47 U.S.C. § 332(c)(7)(B)(i)(D, requires

local authorities to expedite wireless siting applications, 47

U.S.C. § 332(c)(7)(B)(ii), and requires local authorities to

make their decisions in writing based on substantial evidence

in the record, 47 U.S.C. § 332(c)(7)(B)(iii). In addition, and

of particular relevance here, the Act commands that local

siting decisions “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.

The Third Circuit’s misguided view cannot be reconciled

with these statutory provisions. By allowing municipalities to

block the construction of any new facilities as long as some

infrastructure exists, the Third Circuit effectively prohibits

the provision of competitive personal wireless services, even

though Congress already determined that competition should

remain open. Moreover, by granting preferential status to a

wireless carrier with existing installed facilities, the Third

Circuit ironically authorizes- the very discrimination among

carriers that the immediately preceding subsection of the Act

forbids. Finally, by granting blanket authority to block the

construction of new infrastructure as long as existing facilities

are in place, the Third Circuit undermines the Act’s

requirement that local authorities justify individual zoning

decisions on a case-by-case basis, in writing, and based on

record evidence.

The Third Circuit’s one-carrier-serves-all regime also

conflicts with Congress’ intent in enacting § 704. That

section “effects substantive changes to the local zoning

process . . . by preempting any local regulations, including

16

zoning regulations, which conflict with its provisions.” SBA

Commun., Inc. v. Zoning Comm'n of Town of Brookfield, No.

3:00C V006-GLG, 2000 WL 1276834, at *3 (D. Conn. Sept.

6, 2000) (citing Easton, 982 F. Supp. at 50). Congress found

that “[s]tate and local requirements, siting and zoning

decisions” had “created an inconsistent and, at times,

conflicting patchwork of requirements” that was “inhibit[ing]

the deployment” of wireless communications services. H.R.

Rep. No. 104-204, at 94 (1995), reprinted in 1996

U.S.C.C.A.N. 10, 61.

The Third Circuit ignores these strong federal interests and

virtually guarantees a patchwork system of inefficient

wireless service. The decision below gives local authorities a

trump card that allows them to disregard all these federal

interests as long as some carrier is providing service from

existing facilities. Sprint PCS, like Omnipoint, AT&T, and

others, depends on tower siting to build out its network so

that consumers can enjoy Sprint PCS’s state-of-the-art

wireless services wherever they travel. If local authorities

can bloek the construction of new infrastructure by pointing

to a provider of antiquated analog cellular service, the Act

will fail to achieve its two principal goals. In short, the

decision below returns wireless service to the bad old days of

duopoly and consigns consumers to yesterday’s technology.

Ill. THE ISSUES RAISED BY THE DECISION

BELOW MERIT THIS COURT’S IMMEDIATE

ATTENTION

The circuit splits posed in Omnipoint’s Petition, and

developed supra at 3-8, merit expeditious consideration.

Unlike some areas of the law where such splits can

“percolate” for several years as the lower courts strive for

consensus, the issues presented in this case require immediate

resolution. Indeed, this Court twice has granted certiorari to

review important issues under the Telecommunications Act

17

even in the absence of a circuit split. See GTE Service Corp.

v. FCC, 120 S. Ct. 2214 (2000); AT&T Corp. v. Iowa Utils.

Bd., 525 U.S. 366, 371 (1999).

~The wireless industry has become a truly national industry.

Consumers demand a service that allows them to place and

receive calls when they get off an airplane or travel on an

interstate highway. They do not want to have to carry a

separate telephone employing outdated technology just so

they can make calls in a locality that has blocked the

deployment of sophisticated wireless technology.

To satisfy consumer demand, Sprint PCS and _ its

competitors must develop seamless nationwide wireless

networks. The Telecommunications Act recognizes the

important federal interest in the establishment of these

networks, and limits local authority to prevent this

development. The Act cannot accomplish this goal if

disparate interpretations of § 704 are allowed to stand.

Nationwide networks cannot be built if the Third Circuit

maintains an interpretation of the Act at variance with the text

and the views of its sister circuits. National wireless carriers

cannot offer seamless nationwide service if they cannot build

adequate facilities in Pennsylvania, New Jersey, and

Delaware.

The Act recognizes that the siting provisions demand

expedition to function. Subsection B(v) allows carriers to

challenge “any final action or failure to act” and requires the

courts to “hear and decide such action[s] on an expedited

basis.” 47 U.S.C. § 332(c)(7)(B)(v). In addition, a number of

courts have recognized the need for expedition in ensuring

that local zoning officials do not use procedural obstacles to

impose a de facto prohibition on the construction of wireless

facilities. See, e.g., Amherst, 173 F.3d at 17 & n.8. This

Court will further the Act’s interest in expedition by

definitively resolving the issues raised in Omnipoint’s

Petition.

18

Finally, it bears emphasis that by granting certiorari this

Court can eliminate unnecessary friction between state and

local governments and the federal courts. As noted, § 704

embodies a unique and “refreshing experiment in federalism.”

Id. at 17. Section 704 authorizes federal courts to review the

decisions of local zoning boards as if they were decisions

from federal agencies. Uncertainty exacerbates the inevitable

friction between the federal courts and local authorities. This

Court can minimize that friction by fixing the meaning of the

Act. In sum, this Court should grant certiorari now to resolve

the differing interpretations of the siting provisions, without

waiting for further percolation in the lower courts.

CONCLUSION

For the foregoing reasons, and those expressed in

Omnipoint’s Petition, this Court should grant Omnipoint’s

Petition for certiorari.

Respectfully submitted,

Of Counsel PAUL D. CLEMENT

WILLIAM T. SMITH III (Counsel of Record)

LAW DEPARTMENT, SPRINT JEFFREY S. SPIGEL

8140 Ward Parkway KING & SPALDING

Kansas City, MO 64114 1730 Pennsylvania Ave., N.W.

(913) 624-6843 Washington, DC 20006

(202) 737-0500

October 5, 2000 Counsel for Amicus Curiae