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A cellular phone company cannot sue a municipality under the Telecommunications Act of 1996 for refusing to negotiate a lease of municipal-owned land for the erection of an antenna, even if local zoning laws leave no available private property, a federal judge has ruled. In his 13-page opinion in Omnipoint v. Township of Nether Providence, U.S. District Judge Eduardo C. Robreno for the Eastern District of Pennsylvania found that the TCA regulates only zoning decisions, and cannot be extended to cover a municipality’s decisions about whether to lease its own land. “Because the township’s refusal to lease its own property does not constitute an exercise of zoning or regulatory powers, the township had no duty under the TCA to negotiate or ultimately to lease portions of municipal property to Omnipoint for the purpose of installing an antenna,” Robreno wrote. Omnipoint, like all cellular phone companies, uses “cell sites” that connect cellular telephone signals into ordinary telephone lines in a honeycomb pattern, which enables the areas served by different cell sites to overlap. In the suit, Omnipoint said it has a gap in its coverage where signals don’t reach its customers along Route 252 in Delaware County. To improve its service, Omnipoint said it wanted to place an antenna hidden inside a flagpole located at the municipal building in the township of Nether Providence. Because of the township’s zoning ordinance, Omnipoint alleged, there is no private land within the township available for development as sought by Omnipoint. Nether Providence’s zoning ordinance does not allow wireless service providers to locate communications facilities in the residential districts but allows them in commercials and office districts, albeit only by special exception, and, prior to June 1999, by conditional use. The only districts not subject to any such restrictions are the industrial districts and municipal property. When Omnipoint sought to lease the municipal building to serve as a cell site, the township refused the offer. Omnipoint went to court, arguing that the combination of the restrictive zoning scheme, and the township’s refusal to lease its own property amounted to a violation of the TCA. Since Omnipoint is now unable to cure its gap in coverage, the suit said, the township’s decision has “the effect of prohibiting the provision of personal wireless services.” Lawyers for the township moved for dismissal of the suit, arguing that a municipality that declines to negotiate and enter into a lease with a telecommunications provider carrier does not violate the TCA, even when the applicable zoning ordinance leaves available no property where the antenna tower can be built without obtaining a variance. Robreno found that the suit presented a question of statutory construction, and that a “plain reading” of the TCA showed that it does not extend to a municipality’s refusal to lease its own property. Instead, Robreno found that the TCA refers only to “zoning” and “regulation” — both of which are legislative in nature — and says nothing about leasing. “Far from being a ‘rule of order’ imposed by a legislature from above, a lease requires a mutually acceptable agreement between parties entering a contract. As such, a lease cannot constitute a form of ‘zoning’ or ‘regulation’ governed by [the TCA],” Robreno wrote. Omnipoint argued that the TCA requires the township to support “any decision” — including its refusal to negotiate a lease — with substantial evidence. Robreno disagreed, saying “although the provision refers to ‘any decision,’ and thus potentially could refer to a broad range of policymaking choices on the part of the township, the context afforded by the title and other provisions of [the TCA] . . . limits the scope of this phrase to zoning decisions.” The language of the TCA, Robreno said, “strongly suggests that Congress intended for it to apply in the zoning context only.” But despite his ruling, Robreno also found that Omnipoint is not left without a remedy based on the alleged violations of the TCA by the township’s zoning scheme. “Although Omnipoint’s complaint centered on the combination of the township’s restrictive zoning ordinance and its refusal to lease its own property, it appears clear that, in actuality, Omnipoint’s underlying quarrel with the township is over the zoning ordinance,” Robreno wrote. “Because the TCA does govern challenges to zoning ordinances, Omnipoint may, of course, purchase or lease suitable property from a private entity, apply for a variance or special exception from the zoning ordinance, and, should the zoning board deny the request, Omnipoint may seek relief in court for any concomitant violation of the TCA involved in that zoning decision.”

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