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COMMUNICATIONS TOWER: NOT A 'PUBLIC UTILITY'.
Pennsylvania Cellular Telephone Corp. v. Buck Township ZHB, 127 F.Supp. 2d. 635 (M.D. Pa., January 17, 2001).
In this case a wireless communications facility was proposed to be located in a residential district under a special use exception as a "public utility structure or building." The Federal Court for the Middle District of PA determined that the communications service provider was not a public utility (undefined in the zoning ordinance) because it did not meet the Pennsylvania Supreme Court four-part test for determining whether a business entity is a public utility for zoning purposes. Under that test an entity is a public utility if (1) it serves all members of the public; (2) charges rates subject to review by a regulatory body; (3) files tariffs; and (4) modifies or discontinues service only upon approval of the regulatory agency. In this case, the provider was a private, non-regulated business not obligated to serve all members of the public, did not file tariffs and could discontinue service without the approval of a regulatory agency. Also under the Public Utility Code, cellular communications facilities are excluded from the definition of "public utilities".
The Court also found the zoning ordinance was not exclusionary. The use, while not permitted in the residential district was allowed in the industrial district. The case was remanded back to the ZHB to develop a factual record concerning other relevant issues under the Federal Telecommunications Act.
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