In a major reversal, the Ninth U.S. Circuit Court of Appeals has ruled that wireless telecommunications providers can no longer challenge local zoning regulations on the basis that the zoning has the potential to prohibit telecommunications services. Instead, providers will have to show that local regulation does in fact prohibit telecommunications services.

The result of the decision is that it will be very difficult for companies to challenge entire zoning ordinances that regulate the installation of wireless telecommunications facilities such as cell phone antennas. Instead, the companies will have to contest how a local agency applies its ordinance in a specific instance.

"There are going to be a lot fewer challenges to local government discretion over these facilities – how they look and where they go," said Thomas Bunton, the senior deputy San Diego County counsel who won the Ninth Circuit decision.

In March 2007, a three-judge panel of the Ninth Circuit upheld a district court decision striking down San Diego County's 2003 ordinance regulating wireless facility location and appearance. Ruling for Sprint Telephony PCS, the court said the ordinance violated the federal Telecommunications Act of 1996 because the ordinance's discretionary review provisions could prohibit wireless communications services (see CP&DR Legal Digest, May 2007). The decision was based largely on City of Auburn v. Qwest Corp., 260 F3d 1160 (9th Circuit 2001), one of the first circuit court decisions in the country regarding the Telecommunication Act's pre-emption of local zoning. In Auburn, the court adopted a broad interpretation of the pre-emption and struck down an Auburn, Washington, ordinance requiring telecommunications companies to pay for use of the public right-of-way.

Earlier this year, however, the majority of Ninth Circuit judges voted to reconsider the March 2007 ruling in the San Diego County case. An 11-judge en banc panel heard oral arguments in June and in September issued a unanimous opinion that said the Auburn decision was wrong.

At issue were two different sections of the Telecommunications Act – 47 U.S.C. § 253(a) and 47 U.S.C § 332(c)(7). The former section prohibits state or local regulation that "may prohibit or have the effective or prohibiting" telecommunications services. The latter section specifically preserves local zoning authority so long as local regulation does not "prohibit or have the effect of prohibiting" the provision of wireless services. Although the two sections contained some identical language, the Ninth Circuit had been interpreting them differently. The Auburn line of cases read the federal pre-emption in § 253(a) broadly. However, in MetroPCS, Inc. v. City of San Francisco, 400 F3d 715, a Ninth Circuit panel provided a narrower reading of the federal pre-emption based on § 332(c)(7). In MetroPCS, the court ruled that local regulation runs afoul of the Telecommunications Act only if the regulation bans wireless service or actually imposes restrictions that amount to a wireless service ban.

Last year, the Eighth Circuit dismissed the Auburn approach and concluded in Level 3 Commc'ns, LLC v. City of St. Louis, 477 F3d 528, that a telecommunications company "suing a municipality under § 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition."

The en banc panel reconsidering the San Diego case said it found the Eighth Circuit's critique of Auburn "persuasive."

"When Congress uses the same text in the same statute, we presume that it intended the same meaning," Judge Susan Graber wrote for the Ninth Circuit. "Our holding today therefore harmonizes our interpretations of the identical relevant text in §§ 253(a) and 332(c)(7)(B)(i)(II). Under both, a plaintiff must establish 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."

After throwing out the Ninth Circuit's case law, the en banc panel considered the San Diego County ordinance anew. Adopted in 2003, the ordinance established a four-tier system for granting conditional use permits for wireless facilities, with the level of review varying based on the location, visibility and height of proposed structures. The ordinance requires facilities to be compatible with adjacent uses, camouflaged when appropriate and consistent with community character. The court had no trouble finding the ordinance valid under the Telecommunications Act.

"Sprint cannot meet its high burden of proving that ‘no set of circumstances exists under which the ordinance would be valid' simply because the zoning board exercises some discretion," Graber wrote. "[R]equiring a certain amount of camouflage, modest setbacks, and maintenance of facility are reasonable and responsible conditions for the construction of wireless facilities, not an effective prohibition."

Jonathan Kramer, a Los Angeles-based consultant to local government on wireless regulation, said the en banc decision "completely reversed the law in the Western United States."

"It is a stirring reversal in the direction of the Ninth Circuit and after many years brings some common sense back into wireless citing," Kramer said. "The Ninth Circuit stood in splendid isolation from other circuits."

A number of local ordinances in California and elsewhere within the Ninth Circuit's territory have been struck down when telecommunications providers challenged entire ordinances. However, said Kramer, most challenges to a local agency's application of its ordinance in a specific instance have failed. Yet under the en banc ruling, nearly all future lawsuits will have to be "as applied" challenges because it will be very difficult for a company to contest an ordinance its entirety, Kramer and San Diego County attorney Bunton agreed.  "From a local government perspective, the pendulum has swing a little bit past center," Kramer said.

The Case:
Sprint Telephony PCS v. County of San Diego, No. 05-56076, 08 C.D.O.S. 12025, 2008 DJDAR, 14334. Filed September 11, 2008.
The Lawyers:
For Sprint: Daniel Pascucci, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, (858) 320-3000.
For the county: Thomas Bunton, county counsel's office, (619) 531-4860.