Issue
In MetroPCS, Inc. v. City and County of San Francisco (2005 Daily Journal D.A.R. 2835, 9th Cir.(Cal.), Mar. 7, 2005), the United States Court of Appeals considered several issues regarding a wireless service provider’s proposed construction of new antennas.
Facts
MetroPCS is a provider of wireless telecommunications services. It applied to the City of San Francisco’s Planning Department for a Conditional Use Permit (CUP) to install six panel antennas on an existing light pole located on the roof of a parking garage. The Planning Commission voted to grant the application. However, after a public hearing where many local residents vehemently objected to the antennas, the City Board of Supervisors overturned the Planning Commission’s decision. MetroPCS filed a lawsuit in federal district court claiming the Board’s decision violated the Telecommunications Act of 1996 (TCA). The district court decided the case without a trial, and both MetroPCS and City appealed to the United States Court of Appeals.
Appellate Court Decision
Decision “In Writing”. The TCA requires that a state or local government’s decision to deny a request to place or construct a personal wireless facility must be “in writing” and must explain the reasons for the decision so that a reviewing court will be able to evaluate the evidence supporting the denial. The Board met this requirement by issuing a five-page decision, which summarized the facts and proceedings, articulated the reasons for its decision, and explained the evidentiary basis for its decision.
Substantial Evidence. The local zoning decision must be supported by “substantial evidence” with regard to applicable state and zoning regulations. The local regulation here allowed consideration of community need in determining CUP applications. Substantial evidence supported the Board’s decision that the relevant district was “amply served by at least five other major wireless service providers and thus did not ‘need’ the proposed [antennas].”
Discrimination Claim. The TCA prohibits unreasonable discrimination among providers of functionally equivalent services. It is not unreasonable to discriminate based on “traditional bases of zoning regulations,” such as preserving neighborhood characteristics or avoiding aesthetic blight. Here, factual issues exist as to whether MetroPCS’s proposed site is “similarly situated” to other approved facilities in terms of “structure, placement or cumulative impact.” Thus, the case will be sent back to the district court to determine whether City discriminated against MetroPCS with respect to its proposed facility as compared with competing facilities.
Prohibition Claim. The TCA provides that local regulation of the placement of service facilities “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” A local regulation can result in a violation of this prohibition clause if it prevents a wireless provider from closing a “significant gap” in its own service coverage. Here, the evidence was conflicting as to MetroPCS’s need for the antennas. When the case goes back to the district court, that court must determine whether there is a significant gap and whether MetroPCS’s proposed facility is the “least intrusive” for the community.
Environmental Concerns. The TCA prohibits local governments from basing zoning decisions on concerns over radio frequency emissions if the proposed facility complies with FCC requirements. While City heard argument on emissions issues, it did not base its decision on those arguments and did not violate the TCA in that regard.