In Sprint Telephony PCS, L.P. v. County of San Diego, (479 F.3d 1061, 2007 Daily Journal D.A.R. 3406, C.A.9 (Cal.), Mar. 13, 2007)), the United States Court of Appeals recently considered whether an ordinance enacted by a county to regulate wireless telecommunications facilities was preempted by the federal Telecommunications Act of 1996 (“Act”). The Court of Appeals concluded that the Act preempted the county ordinance and affirmed 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 a wireless telecommunications ordinance (“WTO”) that regulated the placement of wireless facilities within the county. In April 2003, San Diego County (“County”) enacted ordinance number 9549, which amended the County’s zoning code relating to wireless telecommunications facilities. The WTO supplements the 2003 zoning ordinance. The WTO required wireless telecommunications providers to obtain one of four conditional use permits before constructing a wireless facility. Those permits included: “(1) Administrative Site Plan Permit; (2) Site Plan with Community Review Permit; (3) Minor Use Permit; or (4) Major Use Permit.” The type of permit required from each provider depended on the proposed structure’s placement, visibility, and height. Each permit applicant was obligated to provide a detailed explanation of its plan, including an explanation of why the site was necessary to the applicant’s network, a visual impact analysis of the proposed facility, an analysis of noise emissions, and various other details about the facility. Applicants were also required to meet the requirements of the County’s zoning ordinance and needed to include a list of all persons having an interest in the application and the property, complete plans for the site, and an environmental review document. The County’s permitting authority was given significant discretion to decide whether a permit should be granted.
Sprint filed a lawsuit alleging a prima facie challenge to the WTO, and sought money damages and fees under the federal civil rights statute (28 U.S.C. § 1983). Sprint argued that the ordinance was invalid on its face because it was preempted by § 253(a) of the Act. Sprint claimed that the WTO’s onerous permitting structure and the amount of discretion retained by the county effectively prevented Sprint from providing wireless service. It also argued that the permitting system placed additional burdens on wireless telecommunications providers that were not placed on all telecommunications providers.
The district court granted Sprint’s request for a permanent injunction prohibiting County from enforcing the WTO. However, the district court found that Sprint could not recover damages from County.
Decision
The Court of Appeals held that the WTO was preempted by § 253(a) of the Act. Section 253(a) provides in pertinent part, “No state or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” Section 256(d) provides that if a state or local statue, regulation, or legal requirement violates § 253, its enforcement shall be preempted. However, 47 U.S.C. § 332(c)(7) expressly preserves local governments’ authority to make decisions regarding the placement of wireless facilities, with the following limitations: the regulations “(I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”
The substantive question before the court was whether § 253(a) preempted the WTO. To succeed in its challenge, Sprint was required to show that there was no set of circumstances under which the WTO would be valid. The court held that Sprint met this burden. The WTO “on its face supplements the Zoning Ordinance by adding submission requirements to an already voluminous list . . . . Those requirements are in addition to the open-ended discretion and threat of criminal penalties contained in the Zoning Ordinance.” The court concluded that the voluminous list of requirements necessary by the WTO and supplemental zoning ordinance had the effect of prohibiting a wireless service provider from constructing a facility because municipalities have a “very limited and proscribed role in the regulation of telecommunications.” Specifically, the court focused on the discretion reserved to the zoning authority, the public hearing requirements, and the criminal penalties for violating the permit, and held that the combination of these factors presented significant barriers to wireless telecommunications, contrary to § 253(a) of the Act.
The court also addressed whether Sprint could recover damages and attorney fees under 28 U.S.C. § 1983. The court held that § 253(a) does not create a private right of action which is enforceable through § 1983 and, therefore, Sprint was not entitled to damages and fees.
Legal Alert Disclaimer
Legal Alerts are published by Kronick Moskovitz Tiedemann & Girard as a timely reporting service to alert clients and other friends of recent changes in case law, opinions or codes. This alert does not represent the legal opinion of the firm or any member of the firm on the issues described, and the information contained in this publication should not be construed as legal advice. Should further analysis or explanation of the subject matter be required, please contact the attorney with whom you normally consult.