A City of San Francisco decision to deny an application for a cell phone antenna has been upheld in part by the Ninth U.S. Circuit Court of Appeals. The court, though, found that questions remained as to whether the city improperly discriminated against the antenna applicant and whether the denial prohibited the provision of wireless services.

The Ninth Circuit sent the case back to the District Court for further proceedings.

The permitting of cell phone antennas has vexed planners since Congress passed the Telecommunications Act of 1996. Exactly how far local governments may go in regulating wireless communication antennas has been the subject of extensive litigation. With it latest ruling, the Ninth Circuit attempted to make some rules clearer.

In early 2002, MetroPCS applied for a conditional use permit to install a six-panel antenna on an existing light pole on the roof of a Geary Boulevard parking garage in the Richmond District. The Planning Commission approved the permit, but a resident appealed to the Board of Supervisors. Eighty local property owners and hundreds of other San Francisco residents signed petitions supporting the appeal. They argued that the antenna was not necessary for MetroPCS or the community, that the antenna would create a visual blight, and that the antenna would produce harmful radio frequency emissions. In June 2002, the Board of Supervisors unanimously overturned the Planning Commission's decision.

MetroPCS then filed a suit in federal court. The company argued that the board's decision violated the Telecommunications Act because it was not “in writing,” was not supported by substantial evidence, was unreasonably discriminatory among wireless service providers, prohibited the provision of wireless service and was improperly based on radio frequency emissions concerns.

District Court Judge Phyllis Hamilton issued summary judgment for the city regarding all claims except one. Hamilton found that material questions of fact remained as to whether the board's decision “had the effect of prohibiting the provision of personal wireless services.” Both sides appealed, and a three-judge panel of the Ninth Circuit largely upheld the lower court.

The Ninth Circuit first dealt with the question of whether the board's decision was in writing. The Circuit Courts are divided on exactly what the Telecommunications Act means by “in writing.” Some circuits demand detailed written explanations similar to a court ruling, while the Fourth Circuit is satisfied with the word “denied” stamped on an application.

The Ninth Circuit panel chose to follow the standard set in S.W. Bell Mobile Sys., Inc. v. Todd, 244 F3d 51 (First Circuit, 2001). The Todd standard requires local governments to “'issue a written denial separate from the written record' which 'contains a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons,'” according to the Ninth Circuit. Under this standard, the San Francisco board's five-page written decision - which summarized the facts, recounted the proceedings, articulated the board's reasoning and explained the evidentiary basis for the decision - stood up.

The next issue for the court was whether substantial evidence existed to support the permit denial. On this issue, the court divided 2-1. The majority held that the court “may not overturn the board's decision on 'substantial evidence' grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence (i.e., more than a 'scintilla' but not necessarily a preponderance).”

The board based its decision in part on the necessity of the antenna. Local zoning regulations authorize the community necessity decision, and, according to the court majority, “the record does clearly establish that the Richmond District is amply served by at least five other major wireless service providers.” Thus, the majority ruled that substantial evidence existed for the board to conclude the proposed antenna was not necessary.

Dissenting on this one point, Judge Susan Graber said the board's determination of necessity conflicted with the Telecommunications Act's provisions barring unreasonable discrimination among service providers. “[T]he board's 'necessity' finding cannot support its denial of MetroPCS's request even if substantial evidence supports that finding,” Graber wrote.

The court reunited on the company's discrimination claim. Here, the appellate panel overturned the lower court. The Telecommunications Act contemplates some discrimination. To prove unreasonable discrimination, a provider “must show that they have been treated differently from other providers whose facilities are 'similarly situated' in terms of the 'structure, place or cumulative impact' as the facilities in question,” the court ruled, citing APT Pittsburgh Ltd. P'ship v. Penn Township Butler County, 196 F.3d 469, 480 (Third Circuit 1999).

The Ninth Circuit held that the record was unclear on whether the city treated MetroPCS's proposed antenna differently. SprintPCS has a wireless facility on Geary Boulevard only two blocks away, and Cingular Wireless has a rooftop antenna in the same neighborhood and “there appears to have been no detailed inquiry into the similarity of the existing facilities to the proposed MetroPCS facility,” Seventh Circuit Judge Richard Cudahy, sitting by assignment, wrote for the court. Thus, the Ninth Circuit sent the question of discrimination back to the lower court.

As for MetroPCS's prohibition claim, the question boiled down to the definition of “significant gap” in service. The Second and Third Circuits have ruled that a significant gap exists only if no provider offers coverage, while the First Circuit defines “significant gap” as one in which the provider in question has a hole in its network. The Ninth Circuit chose the First Circuit's rule. “[A] significant gap in service, and thus an effective prohibition of service, exists wherever a provider is prevented from filling a significant gap in its own service coverage,” Cudahy wrote. Whether that was case for MetroPCS in the Richmond District was unclear, so the District Court rightly declined to grant summary judgment to either side, the Ninth Circuit ruled.

Finally, the Ninth Circuit rejected MetroPCS's argument that the Federal Communications Commission's licensing authority preempted a city decision regarding “necessity,” and dismissed the claim that the board relied on radio frequency emissions as a basis for its decision - which the Telecommunications Act specifically prohibits. The board's written decision did not mention radio frequency emissions.

The Case:
MetroPCS, Inc. v. City and County of San Francisco, No. 03-16759, 05 C.D.O.S. 1988, 2005 DJDAR 2835. Filed March 7, 2005.
The Lawyers;
For MetroPCS: Martin Fineman, Davis, Wright, Tremaine, (415) 276-6500.
For San Francisco: William Sanders, deputy city attorney, (415) 554-6771.