In Sprint Telephony PCS, L.P. v. County of San Diego, (— F.3d —, 2008 WL 4166657, C.A.9 (Cal.), September 11, 2008), the United States Court of Appeals for the Ninth Circuit granted rehearing en banc to reconsider whether a county ordinance enacted to regulate wireless telecommunications facilities is preempted by the federal Telecommunications Act of 1996. The Court of Appeals en banc concluded that the federal act did not preempt the county ordinance and reversed the district court’s decision to grant a permanent injunction to Sprint Telephony PCS, L.P. (“Sprint”) against the enforcement of the ordinance.
Facts
San Diego County (“County”) adopted the Wireless Telecommunications Facilities ordinance (“Ordinance”), which “imposes restrictions and permit requirements on the construction and location of wireless communication facilities” Applications for facilities are categorized into four tiers depending on the location and visibility of the proposed wireless facility. If a facility is to be located in an industrial zone and is a “low-visibility structure” the requirements are less stringent than for a tower that is to be located in a residential zone. The Ordinance places both procedural and substantive requirements on applications for facilities. Non-camouflaged poles are prohibited in certain zones, height and setback restrictions are imposed in residential zones, and the number of facilities allowed on any one site is generally limited to three. An applicant must submit a “visual impact analysis” and provide descriptions of the technical aspects of the facility. A proposed facility must meet design requirements related to aesthetics, and generally must be located within specified “preferred zones” or “preferred locations.”
General zoning requirements also apply to the placement of a wireless facility. Hearings must be conducted before a permit is granted. The zoning board must find that the facility “will be compatible with adjacent uses, residents, buildings, or structures.” County “retains discretionary authority to deny a use permit application or to grant the application conditionally.”
Sprint filed a lawsuit alleging that the Ordinance was invalid on its face because it is preempted by 47 U.S.C. § 253(a) of the federal Telecommunications Act of 1996. Sprint argued that the Ordinance “prohibits or has the effect of prohibiting Sprint’s ability to provide wireless telecommunications services. Sprint also sought money damages and fees under a federal civil rights statute, 42 U.S.C. § 1983.
The district court granted Sprint’s request for a permanent injunction prohibiting County from enforcing the Ordinance. However, the district court found that Sprint could not recover damages from County. A three-judge panel for the Court of Appeals affirmed the district court’s decision. The Court of Appeals en banc granted a rehearing.
Decision
The Court of Appeals en banc held that the Ordinance was not preempted by federal law and reversed the decision of the district court on that issue. Title 47 U.S.C. § 253 “preempts state and local regulations that maintain the monopoly status of a telecommunications service provider.” Section 253(a) provides that no state or local law or regulation “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” Title 47 U.S.C. § 332(c)(7) expressly preserves a local government’s authority to make zoning decisions regarding the placement of wireless facilities, subject to certain limitations. One such limitation is that a local regulation “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”
The Court of Appeals previously held that a locality runs afoul of § 332 “if (1) it imposes a ‘city-wide ban on wireless services’ or (2) it actually imposes restrictions that amount to an effective prohibition.” The court acknowledged that it had not previously interpreted § 253(a) in the same manner as § 332, even though the texts of the sections are nearly identical.
In City of Auburn v. Qwest Corporation, 260 F.3d 1160 (9th Cir. 2001), the court held that § 253(a) “preempts ‘regulations that not only “prohibit” outright the ability of any entity to provide telecommunications services, but also those that “may . . . have the effect of prohibiting” the provision of such service.’” The court noted that many lower courts and another federal circuit court of appeals have critiqued the conclusion reached by the court in the City of Auburn case.
The Court of Appeals decided that the other courts’ critiques of the City of Auburn case were persuasive and decided to overrule its decision in that case. The court decided to join the Eighth Circuit Court of Appeals in holding that “a plaintiff suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition.” The court noted that its decision harmonizes its interpretation of §253 and § 332 and that under both sections “a plaintiff must establish either an outright prohibition or an effective prohibition on the provision of telecommunications services; a plaintiff’s showing that a locality could potentially prohibit the provision of telecommunications services is insufficient.”
The Ordinance, which is at issue here, is clearly “not an outright ban on wireless services.” The court concluded that the Ordinance also does not effectively prohibit “the provision of wireless facilities.” Neither the procedural or substantive provisions of the ordinance effectively prohibit Sprint from providing wireless services. Therefore, the Act does not preempt the Ordinance.
The court also concluded that “42 U.S.C. § 1983 cannot be brought for violations of 47 U.S.C. § 253.”