dissenting. “[A]n entity may be characterized as a public utility if the nature of its operation is a matter of public concern.” Marano v. Gibbs (1989), 45 Ohio St.3d 310, 311, 544 N.E.2d 635, 637. To determine whether the nature of an entity’s operation is a matter of public concern, the majority states that three principal factors must be considered: “lack of competition in the local marketplace, the good or service provided, and the existence of regulation by government authority.” See A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees (1992), 64 Ohio St.3d 385, 388, 596 N.E.2d 423, 426. The appellees have not satisfied their burden of proof on these three factors and therefore are not public utilities. Id. at syllabus.
The wireless communications business is extremely competitive, and more so every day. See In re Comm. Investigation Into Implementation of R.C. 4927.010 Through 4927.05 (Oct. 22, 1993), PUCO No. 89-563-TP-COI, unreported, at 1 (cellular market is competitive, warranting relaxed regulation). This competitiveness, and the concomitant lack of a monopolistic entity, militates against a “public utility” label because issues that would be regulated by PUCO can be resolved in the marketplace.
The good-or-service-provided factor is generally discussed in terms of the essentiality of the good or service. See A & B Refuse, 64 Ohio St.3d at 387, 596 N.E.2d at 425. Wireless communications services are convenient and useful, and have been especially beneficial to businesses. However, they are scarcely more essential than champagne and caviar.
The presence of government regulation is an especially thin reed on which to base the majority’s conclusion because wireless communications and communications in general are being increasingly deregulated to promote competition. Philadelphia v. Pennsylvania Pub. Util. Comm. (Pa.1997), 702 A.2d 1139, 1141; Wisconsin Pub. Serv. Comm. v. Wisconsin Bell, Inc. (1997), 211 Wis.2d 751, 759, 566 N.W.2d 496, 500, fn. 4; In re Procedure & Format for Filing Tariffs Under *109Michigan Telecommunications Act (1995), 210 Mich.App. 533, 536, 534 N.W.2d 194, 197.
The majority states that “[i]f telecommunications providers are never public utilities, there would be no need to enact this division [R.C. 519.211(B) ] subjecting certain telecommunications towers to township zoning restrictions.” I agree. However, that does not mean that telecommunications providers are always public utilities. Some wireless telecommunications providers are public utilities and some are not. Therefore, R.C. 519.211(B) is necessary given the apparent goal of the General Assembly. When a wireless provider does not establish itself as a public utility, R.C. 519.211 has no effect. When a wireless provider establishes itself as a public utility, it is exempt from zoning regulations unless all the elements of R.C. 519.211(B) are met. In this case, the appellees did not establish that they are public utilities; therefore, R.C. 519.211 should have no effect.
Most corporate entities seek to avoid the label “public utility.” It is interesting to see Ameritech and AT&T endeavor so mightily to be designated as public utilities.
I dissent.