Concurring.
I have reservations that the majority’s decision remanding so that evidence of problems faced by Omnipoint users may be included in the determination whether there is a significant gap may not be consistent with our holding in APT Pittsburgh Ltd. v. Penn Township, 196 F.3d 469 (3d Cir.1999). If every licensee who seeks to construct a communications tower were able to compel recalculation of the evidence as to the availability of wireless communications services to remote users because its users have a dead spot in communications, the Township Zoning Boards may receive numerous such requests for a new study which may entail additional time and expense. Moreover, the residential areas may be populated by unsightly towers, however disguised. This situation was addressed by the Penn Township court as follows:
[I]t is necessary for the provider to show more than that it was denied an opportunity to fill a gap in its service system. In order to show a violation of subsection 332(c) (7) (B) (i) (II) under Willoth, an unsuccessful provider applicant must show two things. First, the provider must show that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network. In this context, the relevant gap, if any, is a gap in the service available to remote users. Not all gaps in a particular provider’s service will involve a gap in the service available to remote users. The provider’s showing on this issue will thus have to include evidence that the area the new facility will serve is not already served by another provider.
Second, the provider applicant must also show that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve. This will require a showing that a good faith effort has been made to identify and evaluate less intrusive alternatives, e.g., that the provider has considered less sensitive sites, alternative system designs, alternative tower designs, placement of antennae on existing structures, etc.
Id. at 480 (emphasis added) (footnote omitted).
Omnipoint appears to present precisely the situation encompassed by the above language in Penn Township. Moreover, the fact that Omnipoint failed to raise the issue of the gap calculation in its principal *640brief and reserved it for its reply brief when the Township Zoning Board did not have the opportunity to answer suggests that it was an afterthought. It is not clear whether this argument as to the gap calculation was raised before the Magistrate Judge at some time. It was not raised at the hearing and is not considered in his comprehensive opinion.
Nonetheless, I concur because it is clear from the majority’s opinion that on remand the Township Zoning Board will have the opportunity to challenge Omni-point’s calculations. Under the circumstances, I urge the Magistrate Judge to give the Township ample leeway to do so.