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San Diego County Antenna Use Permit System Invalidated By 9th Circuit

The Ninth U.S. Circuit Court of Appeals has upheld a district court ruling that strikes down San Diego County's ordinance regulating the location and appearance of cell phone antennas and other wireless facilities.

The Ninth Circuit found that the county's wireless telecommunications facilities zoning ordinance violated the federal Telecommunications Act of 1996 because the ordinance "has the effect of prohibiting wireless communication services."

The Ninth Circuit did little to explain how the ordinance prohibits services except to note that it gives county officials discretion and requires public hearings on conditional use permit applications. The state Supreme Court is currently reviewing the legality of the same ordinance under state law (Sprint Telephony PCS v. County of San Diego, No. S145541).

Local zoning regulation of wireless telecommunications equipment has become the source of a great deal of litigation. Much of that litigation concerns local governments' application of their regulations. The case decided by the Ninth Circuit, however, concerned a challenge to the validity of the ordinance itself.

The county adopted its wireless telecommunications ordinance (WTO) in 2003. The ordinance created a four-tier system for granting conditional use permits for wireless facilities. The level of review and amount of information required of an applicant varied based on the location, visibility and height of proposed structures. The ordinance required facilities to be compatible with adjacent uses, camouflaged when appropriate and consistent with community character.

Sprint challenged the ordinance, arguing that it violated 47 U.S.C. 253(a), a section of the Telecommunications Act that says: "No state or local statute or regulation, or other state or local legal requirement, may prohibit or have the effect of prohibiting any entity to provide any interstate or intrastate telecommunications service." The county cited a different part of the act, 332(c)(7), which preserves the authority of local government to decide on the placement of wireless service facilities.

U.S. District Court Judge Judith Keep initially ruled for Sprint and found that the company could seek damages under federal civil rights law (28 U.S.C. 1983). After Keep died, Judge Ted Moskowitz took over the case. He blocked the county from enforcing the ordinance but said 1983 damages were not permissible under the Telecommunications Act. Both sides appealed.

In its opinion, a unanimous three-judge panel of the Ninth Circuit compared 253(a) (which the court called the "removing barriers" provision) with 332(c)(7) (which the court termed the "preserving local zoning authority" provision). The court noted that using the former section to preempt an entire local zoning ordinance "is a new and different application" of the Telecommunications Act (TCA).

The county argued that 332(c)(7) protects the zoning ordinance and that any other reading of the act would render that section moot. But the court determined that the county's argument "ignores the plain meaning and structure of the TCA."

Under the federal law, a telecommunications provider may choose to challenge the facial validity of an ordinance under 253(a), or may choose to challenge the individual application of an ordinance under 332(c)(7). "[B]ut that choice does not imply that one section must undermine the other. Interpreting 253(a) to preempt certain local wireless zoning ordinances does not negate the substantive and procedural elements of 332(c)(7)," wrote Judge Myron Bright, an Eighth Circuit judge sitting by assignment to the Ninth Circuit.

After parsing the two sections, the court then spent only three paragraphs determining that 253(a) preempts San Diego County's ordinance. The court found the case similar to City of Auburn v. Qwest Corp., 260 F3d 1160 (9th Circuit 2001), in which the court struck down a Washington city's ordinance requiring payment for use of public right-of-way. The court in Auburn determined that the ordinance restricted service in violation of the TCA.

"[T]he district court focused on the WTO's application submission requirements, the discretion reserved to the zoning authority, the public hearing requirements, and the criminal penalties for violation of a use permit. The court concluded that the combination of these factors had the effect of prohibiting wireless service in a matter similar to the impermissible franchising ordinance in Auburn," Bright wrote, agreeing with the lower court. "We conclude that the WTO imposes a permitting structure and design requirements that present barriers to wireless telecommunications within the county, and is therefore preempted by 253(a)."

However, the court ruled that 253(a) did not create a right enforceable through federal civil rights law. After reviewing the legislative history, the court concluded, "[A] cost-conscious Congress would not have exposed local governments to 1983 damages that, as Sprint contends in this case, could amount to millions of dollars."

The Case:
Sprint Telephony PCS v. County of San Diego, Nos. 05-56076, 05-56435, 07 C.D.O.S. 2650, 2007 DJDAR 3406. Filed March 13, 2007.
The Lawyers:
For Sprint: Daniel Pascucci, Buchanan Ingersoll, (619) 578-5000.
For the county: John Sansone, county counsel's office, (619) 531-4860.

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