T-Mobile South, LLC v. City of Roswell, Georgia

USCA11 Case: 24-13713 Document: 41-1 Date Filed: 05/21/2026 Page: 1 of 21

FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-13713

____________________

T-MOBILE SOUTH, LLC,

Plaintiff-Appellee,

versus

CITY OF ROSWELL, GEORGIA,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:10-cv-01464-AT

____________________

Before WILLIAM PRYOR, Chief Judge, ABUDU, Circuit Judge, and

CONWAY,* District Judge.

WILLIAM PRYOR, Chief Judge:

* The Honorable Anne C. Conway, United States District Judge for the Middle

District of Florida, sitting by designation.

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2 Opinion of the Court 24-13713

This appeal requires us to decide whether the federal ban of

local “regulation” that “prohibit[s] or ha[s] the effect of prohibit-

ing” the provision of cellular services applies to a municipal deci-

sion to deny an individual permit application. 47 U.S.C.

§ 332(c)(7)(B)(i). Sixteen years ago, T-Mobile applied for permis-

sion to build a new cell phone tower in the City of Roswell, which

denied the application. T-Mobile sued and alleged that the denial

prevented it from providing service to some customers. The dis-

trict court ruled in favor of T-Mobile after concluding that Ro-

swell’s denial prevented T-Mobile from filling a gap in its services

and that building a cell tower at its preferred location was the least

intrusive means of filling that gap. Because T-Mobile may chal-

lenge only Roswell’s “regulation” of cell tower siting under the ef-

fective prohibition provision, not the denial of a single permit, we

vacate and remand for further proceedings.

I. BACKGROUND

In February 2010, T-Mobile South “applied to build a new,

108-foot-tall cell phone tower on 2.8 acres of vacant residential

property in the city of Roswell, Georgia.” T-Mobile S., LLC v. City of

Roswell, 574 U.S. 293, 296 (2015). A zoning ordinance required per-

mits for “all new wireless . . . facilities,” and it allowed their ap-

proval or denial based on “consideration” of nine factors. Roswell

denied the application. Id. at 298.

T-Mobile sued Roswell under the Telecommunications Act

of 1996. Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in

U.S.C. Titles 15, 18, and 47). It alleged three claims for relief: first,

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24-13713 Opinion of the Court 3

that the denial of its application “was not supported by substantial

evidence” in a written record; second, that denial of its application

rendered it “unable to fill a gap in coverage necessary to provide

competitive, reliable, uninterrupted, in-building wireless tele-

phone services”; and third, that denial of its application “ha[d] the

effect of unreasonably discriminating among providers of function-

ally equivalent services.” T-Mobile sought an injunction requiring

Roswell to issue the requested permit.

The district court entered summary judgment for T-Mobile

because Roswell failed to “issue a written decision.” We reversed,

see T-Mobile S., LLC v. City of Roswell, 731 F.3d 1213, 1214 (11th Cir.

2013), and the Supreme Court reversed our decision for a different

reason, see 574 U.S. at 307–08. We then remanded the case to the

district court.

The district court concluded that Roswell had provided sub-

stantial evidence to deny the application and granted Roswell’s mo-

tion for summary judgment on that claim. It then considered, for

the first time, T-Mobile’s claim that Roswell had effectively prohib-

ited the provision of wireless services by denying its application.

The district court ruled that the effective prohibition provision ap-

plied to the “denial of a single permit application.” And it adopted

the “significant gap” test, which required T-Mobile to prove “a sig-

nificant gap in its own service coverage” and “that the proposed

tower [was] the least intrusive means of closing that gap.” It con-

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4 Opinion of the Court 24-13713

cluded that T-Mobile had satisfied that test, but because the evi-

dence was “six years old,” it remanded the case to Roswell to re-

consider the permit application and create a new record.

Roswell denied T-Mobile’s application again in 2017, and the

parties proceeded to a bench trial. The district court ruled in favor

of T-Mobile. It found that T-Mobile faced a significant “gap in ser-

vice” that the proposed tower would remedy. It then found that T-

Mobile had no viable alternative means to close the gap. So the dis-

trict court enjoined Roswell to “issue all necessary permits and ap-

provals and authorize construction of the tower.”

On appeal, Roswell asked us to reverse the district court’s

application of the significant gap test, and T-Mobile defended it.

Neither party questioned the use of that test. We sua sponte directed

the parties to discuss at oral argument “whether denial of a single

permit qualifies as ‘the regulation of placement’” under the Act.

After oral argument, we directed the parties to address in supple-

mental briefing whether “‘the regulation of the placement, con-

struction, and modification of personal wireless service facilities’

includes the denial of a single permit to build a facility.” 47 U.S.C.

§ 332(c)(7)(B)(i). T-Mobile argued that it did; Roswell argued that

it did not.

II. STANDARD OF REVIEW

On appeal from a bench trial, “we review de novo both con-

clusions of law and the application of the law to the facts.” League

of Women Voters of Fla. Inc. v. Fla. Sec’y of State, 66 F.4th 905, 921

(11th Cir. 2023).

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III. DISCUSSION

The Telecommunications Act of 1996 “generally preserves

the traditional authority of state and local governments to regulate

the location, construction, and modification of wireless communi-

cations facilities like cell phone towers, but imposes specific limita-

tions on that authority.” Roswell, 574 U.S. at 300 (citation and inter-

nal quotation marks omitted). “One of those limitations,” id., is

that “[t]he regulation of the placement, construction, and modifi-

cation of personal wireless service facilities” by state and local gov-

ernments “shall not prohibit or have the effect of prohibiting the

provision of personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i).

Although this appeal is our first opportunity to interpret this pro-

vision, we are not the first circuit to do so.

So far, federal courts have largely assumed that “the regula-

tion of ” cell tower siting includes the denial of a single permit. See,

e.g., Town of Amherst v. Omnipoint Commc’ns Enters., Inc., 173 F.3d 9,

14 (1st Cir. 1999); T-Mobile Ne. LLC v. Fairfax Cnty. Bd. of Supervisors,

672 F.3d 259, 266 (4th Cir. 2012). Other circuits have developed a

test for effective prohibition tailored to denials of a single permit.

That significant gap test asks whether a proposed wireless facility

is the “least intrusive means” or “only feasible plan” to close a “sig-

nificant gap” in wireless services. E.g., Omnipoint Holdings, Inc. v.

City of Cranston, 586 F.3d 38, 48, 50 n.8 (1st Cir. 2009); Sprint Spec-

trum, L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999); T-Mobile Cent.,

LLC v. Charter Twp. of W. Bloomfield, 691 F.3d 794, 805, 808 (6th Cir.

2012); VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818,

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6 Opinion of the Court 24-13713

833–35, 834 n.7 (7th Cir. 2003); T-Mobile USA, Inc. v. City of Ana-

cortes, 572 F.3d 987, 995 (9th Cir. 2009).

Yet, courts have failed to explain why any version of the sig-

nificant gap test is a faithful interpretation of section 332(c)(7)(B)(i).

As the Third Circuit has stated, the test is hardly “tethered to the

text,” and the courts that initially derived it did so without perform-

ing “any statutory construction.” Cellco P’ship v. White Deer Twp.

Zoning Hearing Bd., 74 F.4th 96, 103 (3d Cir. 2023). Other circuit

courts have debated only questions internal to the test without at-

tempting to justify it from first principles. See, e.g., MetroPCS, Inc. v.

City & County of San Francisco, 400 F.3d 715, 731–35 (9th Cir. 2005);

W. Bloomfield, 691 F.3d at 805–08.

We conclude that the significant gap test fails at the thresh-

old: the effective prohibition provision applies only to state and lo-

cal “regulation of ” cell tower siting, not to individual siting deci-

sions. 47 U.S.C. § 332(c)(7)(B)(i). The text, context, and structure of

subsection (c)(7) each reinforce our conclusion.

As always, we “begin[] with the statutory text.” BedRoc Ltd.

v. United States, 541 U.S. 176, 183 (2004). Subsection (c)(7)(B)(i)

places “[l]imitations” on “[t]he regulation of the placement, con-

struction, and modification of personal wireless service facilities.”

Contemporaneous dictionaries inform us that “regulation” is “[t]he

act or process of controlling by rule or restriction.” Regulation,

BLACK’S LAW DICTIONARY (7th ed. 1999) (emphasis added). Because

“regulation” is used to describe the process of regulating, we look

to what it means to “regulate.” Regulate too carries the primary

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24-13713 Opinion of the Court 7

meaning “to govern or direct according to rule.” Regulate,

WEBSTER’S THIRD NEW INT’L DICTIONARY 1913 (1993); see also Reg-

ulate, WEBSTER’S NEW INT’L DICTIONARY 1798 (1920) (defining

“regulate” as “[t]o adjust or control by rule, method, or established

mode; to direct by rule or restriction”); Regulate, OXFORD ENGLISH

DICTIONARY 379 (1961) (defining “regulate” as “[t]o control, gov-

ern, or direct by rule or regulations”); Regulate, AM. HERITAGE

DICTIONARY 6070 (3d ed. 1992) (defining the term as “[t]o control

or direct according to rule, principle, or law”). These nearly identi-

cal definitions inform us that the “common or ordinary meaning,”

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569 (2012), of “the

regulation of ” siting entails control by rule or restriction. See Ysleta

Del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1938 (2022) (“to regulate

something is usually understood to mean to ‘fix the time, amount,

degree, or rate’ of an activity ‘according to rules’” (alteration

adopted) (citation omitted)).

The definitions rule out the denial of a permit application

from the scope of the effective prohibition clause. A local govern-

ment does not control the uses of property by rule or restriction

when it denies a permit; it declines to give a property owner per-

mission to use his property in a way otherwise disallowed by the

ordinance. And the “limitation[s]” on the use of that property come

from the rules the locality applies to property. Restriction,

WEBSTER’S THIRD, supra, 1937. Properly understood, subsec-

tion (c)(7)(B)(i) limits only the ability of municipalities to control

facility siting by rules, not by individual zoning decisions.

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8 Opinion of the Court 24-13713

T-Mobile agrees with us that the noun “regulation” here is

the nominalization of the verb “regulate.” And it cites some of the

same dictionary definitions we do. But it focuses entirely on the

term “control”: because local governments “exercis[e] control over

the placement of wireless facilities through decisions on specific sit-

ing requests,” it argues, doing so is regulating.

This reading requires us to ignore the limiting modifier in

the definition, which tells us what type of control is meant by the

term “regulate.” See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1170

(2021) (holding that a modifier in a statutory definition limits the

scope of the terms). As T-Mobile’s chosen dictionary tells us, that

control is “according to rule, principle, or law.” Regulate, AM.

HERITAGE DICTIONARY, supra, 6070. A locality may control siting

through individual permit decisions, but those decisions are not

“rule[s], principle[s], or law[s].” Id. If those decisions are “[i]n keep-

ing with” the rules, According to, AM. HERITAGE DICTIONARY, supra,

132, then the object of the provider’s challenge is the rule itself, not

the zoning decision.

The statutory context confirms our reading: “regulation” is

a subset of “decisions.” Subsection (c) is titled “Regulatory treat-

ment of mobile services,” and it grants the Federal Communica-

tions Commission substantial regulatory authority and presump-

tive preemption of some state regulation. 47 U.S.C. § 332(c)(1)–(3).

Subsection (c)(7) preserves “local zoning authority” from the sec-

tion’s preemptive scope. It begins by clarifying that, outside the

limitations to follow, “nothing in this chapter shall limit or affect

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the authority of a State or local government . . . over decisions re-

garding the placement, construction, and modification of personal

wireless service facilities.” 47 U.S.C. § 332(c)(7)(A) (emphasis

added). Everything that follows in subsection (c)(7)(B) is a “[l]imi-

tation[]” on that general authority to make “decisions” about cell

tower siting. “Regulation” is a category of “decisions” about cell

tower siting, not the inverse.

Subsection (c)(7)(B) limits local authority in two categories

of “decisions.” The statutory text uses “regulation” when imposing

substantive limits on local authority, and it uses the singular term

“decision” for procedural acts. Subsection (c)(7)(B)(i) bars localities

from regulating siting decisions if a regulation has one of two sub-

stantive effects: unreasonable discrimination against providers or

“the effect of prohibiting the provision of personal wireless ser-

vices.” And subsection (c)(7)(B)(iv) similarly limits the ability of lo-

calities to “regulate” tower placement or construction “on the basis

of the environmental effects of radio frequency emissions.” On the

other hand, Congress required state and local governments faced

with “request[s] for authorization to place, construct or modify

personal wireless service facilities” to act on them “within a reason-

able period of time.” Id. § 332(c)(7)(B)(ii). And it further required

that “[a]ny decision by a State or local government . . . to deny a

request to place, construct, or modify personal wireless service fa-

cilities shall be in writing and supported by substantial evidence

contained in a written record.” Id. § 332(c)(7)(B)(iii).

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Because Congress used “materially different term[s]” in the

same subsection, we presume that it expressed a “different idea.”

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS § 25, at 170 (2012). If Congress

meant to impose substantive limitations on individual cell tower

siting decisions, it could have done so by using the exact term it used

in subsection (c)(7)(A). When Congress imposed procedural limita-

tions on permit denials, it used the term “decision” with an addi-

tional qualifier: the “decision” in question is “to deny a request”

from a provider. 47 U.S.C. § 332(c)(7)(B)(iii). Congress had a term

broad enough to cover both regulation and permit denials, and a

phrase nearly specific to permit denials. But it used neither in im-

posing substantive limitations on local authority.

T-Mobile presents two alternative theories. It approvingly

cites three district court opinions concluding that subsec-

tion (c)(7)(B) allows only challenges to individual zoning decisions.

See, e.g., Cox Commc’ns PCS, L.P. v. City of San Marcos, 204 F. Supp.

2d 1272, 1277 (S.D. Cal. 2002) (ruling that because section 253 al-

lows providers to challenge state or local ordinances, an interpre-

tation of subsection (c)(7)(B) allowing them to do the same “would

be superfluous”); Sprint Telephony PCS, L.P. v. County of San Diego,

377 F. Supp. 2d 886, 891–92 (S.D. Cal. 2005) (ruling that subsec-

tion (c)(7)(B) permits challenges to “decisions on individual appli-

cations”); Verizon Wireless LLC v. City of Rio Rancho, 476 F. Supp. 2d

1325, 1337 (D.N.M. 2007) (ruling that subsection (c)(7) “refers only

to individual zoning decisions”). But these opinions fail to explain

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why, if Congress meant “regulation” to mean only individual deci-

sions, it did not use the term “decision” in subsection (c)(7)(B)(i)

and (iv). Nor do they explain why Congress used language specific

to permit applications in subsection (c)(7)(B)(ii) and (iii).

T-Mobile acknowledges that the term “regulation” means

more than individual zoning decisions. It would have us read “reg-

ulation” to include both “control[] by rule” and “individual permit

decisions.” But that reading leaves no gap in meaning between “de-

cisions” and “regulation.” And it too fails to explain Congress’s use

of “regulation” rather than “decision” in subsection (c)(7)(B)(i).

Congress intended the substantive limitations on local decisions to

permit challenges to rules, not to impose a new-born body of sub-

stantive federal common law on all zoning decisions.

The internal logic of subsection (c)(7)(B) also cuts in favor of

the narrower reading of “regulation.” Only subsection (c)(7)(B)(iv)

could theoretically be violated by an individual zoning decision if

that decision was based on “the environmental effects of radio fre-

quency emissions.” But how could an individual siting decision pos-

sibly violate subsection (c)(7)(B)(i)(I), which requires that “regula-

tion” not “unreasonably discriminate among providers”? At least

two zoning decisions are necessary to prove differential treatment.

T-Mobile nevertheless argues that we have previously ap-

plied the unreasonable discrimination provision to an individual

siting decision. In Michael Linet, Inc. v. Village of Wellington, we con-

cluded that an unreasonable discrimination claim failed because

the provider failed to prove its proffered comparator was similarly

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12 Opinion of the Court 24-13713

situated. See 408 F.3d 757, 762 (11th Cir. 2005). But Michael Linet did

not interpret the text of section 332(c)(7)(B)(i). Nor does Michael

Linet conflict with a plain-meaning interpretation of “regulation”

that requires a provider to challenge a zoning rule. Our decision

recognized only that a comparator complaint of discrimination fails

on its own terms when the comparator is not similar in all material

respects.

The “effective prohibition” provision too requires consider-

ation of the broader “regulation” of siting decisions. Denial of a sin-

gle permit to build a cell tower will never effectively prohibit wire-

less services—unless we consider the restrictions the zoning ordi-

nance more broadly imposes upon siting. Site A might work as a

cell tower location, but denial of a permit to build there does not

answer why a provider cannot build its tower at Site B or C. To

answer that question, we must look to the ordinance that restricts

siting at B or C or imposes the same permitting requirement at all

three sites. For a provider to prove that Sites B and C are unavaila-

ble, it must point to the rules that render them so. So long as B and

C would function as cell tower sites, their commercial availability

is irrelevant: it is the locality’s regulation that must effectively pro-

hibit construction.

“Regulation” includes rules both written and unwritten. A

provider may challenge how a state or locality controls siting. That

challenge may be based entirely on the text of the local zoning or-

dinance, or it may be based on how the locality has implemented

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its zoning ordinance. A provider could work from individual deci-

sions that “reflect . . . or represent” an unwritten rule that effec-

tively prohibits the provision of services. Town of Amherst, 173 F.3d

at 14. If the provider can show that permits to build at A, B, and C

have been denied, and that permit requests at D, E, and F are likely

to face the same fate, it might have a colorable case that the city

has a rule amounting to an effective prohibition of services. The

burden on a provider bringing an “as-applied” challenge of this sort

will be “heavy,” Fairfax Cnty. Bd. of Supervisors, 672 F.3d at 272

(Agee, J., concurring), but that fact is hardly surprising when the

Act “preserves traditional local zoning authority over siting deci-

sions,” MetroPCS, 400 F.3d at 729 n.6.

Courts that follow the significant gap test have recognized

the reality that the Act requires them to look to the rules local gov-

ernments impose, but those courts have attempted to rework the

test itself to avoid this reality. They have debated the second part

of the test: whether the proposed site must be the “least intrusive

means” or the “only feasible plan” for providing service. See, e.g.,

Omnipoint Holdings, 586 F.3d at 50 n.8 (describing the “only feasible

plan” test as requiring that “further reasonable efforts to find an-

other solution are so likely to be fruitless that it is a waste of time

even to try” (alterations adopted) (citation and internal quotation

marks omitted)); Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 266

(3d Cir. 2002) (describing the inquiry as whether the proposed

tower “is the least intrusive on the values that denial sought to

serve” (citation and internal quotation marks omitted)). But which-

ever test a court applies, the analytical move remains the same:

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14 Opinion of the Court 24-13713

whether some alternative means of closing the gap would have been

approved under the zoning ordinance.

Later opinions recognized the tension inherent in this form

of analysis. How many alternative sites must a provider investigate

and rule out? See, e.g., Omnipoint Holdings, 586 F.3d at 51–52. With-

out some “limit[] on town zoning boards’ ability to insist that car-

riers keep searching,” it is hard to imagine how a single denial could

ever be proved to effectively prohibit service. Id. at 52. Courts

solved this problem by arbitrarily reducing the burden upon pro-

viders. See W. Bloomfield, 691 F.3d at 808 (adopting the “least intru-

sive means” standard because it is “considerably more flexible” and

the “analysis is straightforward”); Omnipoint Holdings, 586 F.3d at

52 (concluding that “[a]ny feasibility analysis” must “balance[] . . .

competing interests”); MetroPCS, 400 F.3d at 734 (choosing a rule

based on “policy considerations”). Finding this sort of common-law

rulemaking in opinions ostensibly interpreting a statute is a clear

signal that something has gone badly wrong in the textual interpre-

tation.

Having considered the ordinary meaning of the term “regu-

lation,” the immediate statutory context, and the structural impli-

cations of the statute, we conclude that “regulation,” as used in

subsection (c)(7)(B)(i), means control by rule. Providers mounting

an effective prohibition challenge must aim at the zoning rules

themselves instead of an individual denial. T-Mobile did not do so.

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T-Mobile responds that many courts have “directly ad-

dressed” this issue but that no court “in the thirty years since Con-

gress enacted” the Telecommunications Act has adopted our view.

It cites several of the same decisions we do and suggests that these

courts have not discussed the meaning of “regulation” because “the

commonly understood meaning of the language, in context, re-

quired no discussion.” We are not persuaded.

When Justice Breyer described the requirements that the

Act imposed on “local zoning boards” considering “permit applica-

tions,” he listed only the requirements that they decide them

“‘within a reasonable period of time,’ . . . maintain a ‘written rec-

ord[,]’ and give reasons for denials ‘in writing.’” City of Rancho Palos

Verdes v. Abrams, 544 U.S. 113, 128 (2005) (Breyer, J., concurring)

(quoting 47 U.S.C. § 332(c)(7)(B)(ii)–(iii)). He did not mention the

unreasonable discrimination or effective prohibition provisions. T-

Mobile’s common-sense reading apparently did not occur to Justice

Breyer, nor to the three justices who joined his opinion. Nor does

it make sense to us.

T-Mobile points to subsection (c)(7)(B)(v), which grants a

right of action to a provider “affected by any final action or failure

to act . . . inconsistent with this subparagraph.” In its reading, be-

cause an “action” may be inconsistent with the requirements of

subsection (c)(7)(B), an individual zoning decision must be able to

violate any of the provisions of the subsection. But an individual

decision could be “inconsistent with” the subsection because it ap-

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16 Opinion of the Court 24-13713

plied a regulation that was itself inconsistent with one of the sub-

section’s substantive requirements. Challenging that decision re-

quires a provider to prove, for subsection (c)(7)(B)(i), that the rule

itself violated the statute. Cf. Sackett v. EPA, 566 U.S. 120, 122–27

(2012) (holding that a compliance order was a “final agency action,”

see 5 U.S.C. § 704, and allowing the plaintiffs to litigate the meaning

of “navigable waters” under the Clean Water Act).

Nor should we be surprised that the Act includes a final ac-

tion requirement. Zoning ordinances ordinarily grant broad discre-

tion to zoning boards: they can grant permits to build otherwise

unlawful structures, as here, and they can grant variances from oth-

erwise applicable zoning rules. See Williamson Cnty. Reg’l Plan.

Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 187–88 (1985)

(explaining that a Takings Clause challenge was not ripe because

the developer had not applied for variances from the ordinance).

Because zoning ordinances often allow zoning boards to dispense

with their requirements in particular cases, Congress elected to

conserve judicial resources by requiring providers in most cases to

ask municipalities for exceptions to their rules before federally chal-

lenging those rules. That choice makes sense in the light of Con-

gress’s express goal of “[p]reserv[ing] . . . local zoning authority,”

47 U.S.C. § 332(c)(7), and providing only “limited remedies” in fed-

eral court. Abrams, 544 U.S. at 127.

T-Mobile also points us to what it maintains are two other

uses of the phrase “the regulation of ” in the Act. But the two sec-

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24-13713 Opinion of the Court 17

tions it cites pre-date the Act. The first, 47 U.S.C. § 555a(a), was en-

acted in 1992. See Cable Television Consumer Protection and Com-

petition Act of 1992, Pub. L. No. 102-385, § 24(a), 106 Stat. 1460,

1500. And the other, 47 U.S.C. § 533(d), was enacted even earlier in

1984. See Cable Communications Policy Act of 1984, Pub. L. No.

98-549, § 2, 98 Stat. 2779, 2785. These sections are nevertheless rel-

evant to our analysis, as they “deal[] with the same subject,” and

“should if possible be interpreted harmoniously.” SCALIA &

GARNER, supra, § 39, at 252.

T-Mobile fails to explain how these related statutes carry the

meaning it suggests. It first points to section 555a(a), which prohib-

its providers from suing local governments for damages “arising

from the regulation of cable service or from a decision of approval

or disapproval with respect to a grant, renewal, transfer, or amend-

ment of a franchise.” 47 U.S.C. § 555a(a). Yet section 555a could

reasonably be read to use the phrase “the regulation of ” to mean

control by rule. T-Mobile cites a decision it contends interprets the

phrase to reach a locality’s denial of an individual request. But the

decision does not clearly do so. In Jones Intercable of San Diego, Inc.

v. City of Chula Vista, the Ninth Circuit held that a city’s denial of

permits to lay cable in its borders was the “regulation of cable ser-

vice.” See 80 F.3d 320, 323–24 (9th Cir. 1996) (citation and internal

quotation marks omitted). But the facts were markedly different:

the city had required the cable company to “obtain[] a city-wide

franchise” before it could obtain any permits. Id. at 324. Under our

interpretation, this general requirement would amount to a rule.

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18 Opinion of the Court 24-13713

Nor does section 533(d), which disallows state and local gov-

ernments from “prohibit[ing] the ownership or control of a cable

system by any person because of such person’s ownership or con-

trol of any other media of mass communications,” alter our analy-

sis. 47 U.S.C. § 533(d). “Regulation of ” is used only in the section

title, not in the text, and the single district court opinion T-Mobile

cites does not interpret the phrase as used in the section title. See

Cable Ala. Corp. v. City of Huntsville, 768 F. Supp. 1484, 1500–01

(N.D. Ala. 1991).

T-Mobile also directs us to another provision, see 47 U.S.C.

§ 253, of the 1996 Act. See § 101(a), 110 Stat. at 70. Section 253 bans

states and localities from adopting “statute[s] or regulation[s]” that

“prohibit or have the effect of prohibiting” the provision of tele-

communications services. 47 U.S.C. § 253(a). Because it lacks the

explicit limitation found in section 332(c)(7)(B)(v), some courts

have construed subsection 253 to allow facial challenges to local

ordinances. See Sprint Telephony PCS, L.P. v. County of San Diego, 490

F.3d 700, 714 (9th Cir. 2007).

T-Mobile argues that because this section allows facial chal-

lenges to regulations that “prohibit or have the effect of prohibit-

ing” services, we should not interpret subsection (c)(7)(B)(i)(II) to

do the same. But unlike subsection (c)(7)(B), section 253 does not

contain an express right of action. Instead, it allows the Federal

Communications Commission to preempt impermissible regula-

tions. 47 U.S.C. § 253(d). To be sure, we have read section 253 to

provide an implied private right of action based on its legislative

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24-13713 Opinion of the Court 19

history. See BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d

1169, 1191 (11th Cir. 2001). But even that implied right of action

reaches only violations of subsection (a) that “potentially im-

plicat[e] subsection (c),” id., which guarantees the rights of state

and local governments to “manage the public rights-of-way.” 47

U.S.C. § 253(c). Under our precedent, section 253 permits only a

subcategory of facial challenges to local ordinances; it cannot re-

place challenges under subsection 332(c)(7)(B).

T-Mobile also argues that it is telling that section 253 uses

the term “regulation” in a different form than section 332. Sec-

tion 253(a) lists “regulation” alongside “statute” and “legal require-

ment.” T-Mobile suggests that this divergent use of “regulation”—

not as the nominalization of regulate, but as a concept synonymous

with “rule”—tells us that we should read section 332 differently.

But as we have explained, “regulate” itself connotes control by

rule. Changing that verb to a noun, in “the regulation of,” changes

its meaning only to the control by rule. And if anything, the term is

less precise as used in section 253. After all, the appropriate mean-

ing used there includes “[a] rule or order, having legal force.” Regu-

lation, BLACK’S LAW DICTIONARY, supra (emphasis added); see also

Regulation, WEBSTER’S THIRD, supra, 1913 (defining “regulation” as

“a rule or order having the force of law”). The proper construction

of section 253 is a task for another day, but it seems to us that the

textual argument to include as “regulations” the individual orders

denying permits is stronger under section 253 than section 332.

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20 Opinion of the Court 24-13713

Finally, T-Mobile argues that our interpretation would viti-

ate the Act. It fears that a locality could draft an ordinance so broad,

and commit so much to decisionmakers’ discretion, that a provider

could never bring a substantive challenge under subsec-

tion (c)(7)(B). We remain unpersuaded.

There are at least two problems with this argument. First,

even if that outcome would follow from our interpretation, it falls

to Congress to “amend the statute to conform it to its intent.”

Lamie v. U.S. Tr., 540 U.S. 526, 542 (2004). Second, in any event, a

city’s “regulation” of siting decisions is not limited to what is con-

tained in a zoning ordinance. Unwritten rules applied in individual

decisions too are susceptible to challenge. If a provider can prove

that an ordinance’s facially permissive siting requirements are a fig

leaf for an effective prohibition, it may challenge that prohibition

in federal court. But it may not challenge individual decisions on

the ground that a single denial of a request to build a cell tower

itself is an effective prohibition: that mechanism is foreign to the

law Congress enacted.

Our interpretation of the Telecommunications Act is irrec-

oncilable with any version of the significant gap test, including the

version the district court applied. For the last several years, the par-

ties have litigated under incorrect assumptions about the law. We

remand this case to the district court to provide the parties with the

opportunity to develop the facts and apply the correct law in the

first instance. See Martin v. United States, 145 S. Ct. 1689, 1703 (2025).

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IV. CONCLUSION

We VACATE the judgment and REMAND to the district

court for further proceedings consistent with this opinion.