Sprint v. Telephony Pcs v. County of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SPRINT TELEPHONY PCS, L.P., a 

Delaware limited partnership,

Plaintiff-Appellant-

Cross-Appellee,

and

PACIFIC BELL WIRELESS LLC, a

Nevada limited liability company,

dba Cingular Wireless,

Plaintiff,

Nos. 05-56076

v. 05-56435

COUNTY OF SAN DIEGO; GREG COX, D.C. No.

in his capacity as supervisor of the

County of San Diego; DIANNE

 CV-03-1398-BTM

JACOB, in her capacity as ORDER AND

supervisor of the County of San AMENDED

Diego; PAM SLATER, in her OPINION

capacity as supervisor of the

County of San Diego; RON

ROBERTS, in his capacity as

supervisor of the County of San

Diego; BILL HORN, in his capacity

as supervisor of the County of San

Diego,

Defendants-Appellees-

Cross-Appellants.



Appeals from the United States District Court

for the Southern District of California

Barry Ted Moskowitz, District Judge, Presiding

Argued and Submitted

October 26, 2006—Pasadena, California

7163

7164 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

Filed March 13, 2007

Amended June 13, 2007

Before: Myron H. Bright,* A. Wallace Tashima, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bright

*The Honorable Myron H. Bright, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation.

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7167

COUNSEL

Daniel T. Pascucci, Andrew D. Skale, and Nathan R. Hamler,

Buchanan Ingersoll LLP, San Diego, California, for the

plaintiff-appellant-cross-appellee.

Thomas D. Bunton and John Sansome, County of San Diego

Office of County Counsel, San Diego, California, for the

defendants-appellees-cross-appellants.

Dennis J. Herrera, San Francisco City Attorney, Theresa L.

Mueller, Chief Energy & Telecommunications Deputy,

Danny Y. Chou, Chief Appellate Deputy, and William K.

Sanders, Deputy City Attorney, San Francisco, California, for

amici curiae National League of Cities, et al.

Edward L. Donohue, Donohue & Blu PLC, Alexandria, Vir-

ginia, for amici curiae T Mobile USA, Inc. and PCIA.

ORDER

The unopposed motion of the National League of Cities

and eight other organizations for leave to file an Amici Curiae

7168 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

brief is granted, and their amici brief in support of the petition

for panel rehearing and rehearing en banc, received by the

Clerk on April 12, 2007, concurrently with the filing of the

motion, is ordered filed. The motion of appellee County of

San Diego for leave to file reply in support of its petition for

rehearing and rehearing en banc is denied.

The opinion filed March 13, 2007, and reported at 479 F.3d

1061, is hereby amended. The attached amended opinion is

filed concurrently with this order.

With the filing of the amended opinion, the petition for

panel rehearing is denied. No further petitions for panel

rehearing will be entertained. The full court was advised of

the petition for rehearing en banc and no judge of the court

has requested a vote on en banc rehearing. See Fed. R. App.

P. 35(f). The petition for rehearing en banc is denied, without

prejudice to a petition for rehearing en banc as to the amended

opinion.

OPINION

BRIGHT, Circuit Judge:

Sprint Telephony PCS sought an injunction in the district

court to prevent San Diego County (“the County”) from

enforcing its Wireless Telecommunications Facilities zoning

ordinance (“WTO”). The district court granted a permanent

injunction, agreeing with Sprint that the WTO’s regulation of

wireless facility placement violated § 253(a) of the Telecom-

munications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56

(1996) (codified as amended in scattered sections of U.S.C.

Titles 15, 18, & 47) (“TCA”). But, the court held that § 253(a)

did not create a private right of action and thus denied

Sprint’s 28 U.S.C. § 1983 claim for money damages and

attorney’s fees. See Sprint Telephony PCS, L.P. v. County of

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7169

San Diego, 377 F. Supp. 2d 886 (S.D. Cal. 2005). Sprint

appeals the denial of its § 1983 claim, and the County cross-

appeals seeking reversal of the order granting the permanent

injunction. We conclude that the burdens imposed by the

WTO were sufficient to sustain a facial challenge under

§ 253(a) and that Congress did not intend to permit enforce-

ment of § 253(a) through a § 1983 damages action. We

accordingly affirm the district court.

I.

Today’s wireless age began when Guglielmo Marconi

developed a way for ships to communicate over radio waves

in 1895. See PETER W. HUBER ET AL., FEDERAL TELECOMMUNI-

CATIONS LAW 10, 861 (2d ed. 1999) (hereinafter “Huber”).

Mobile technology in the United States initially relied on

single-cell transmission, which severely limited the number of

subscribers who could utilize the system. It was not until

December 1947 that Bell Labs scientist D.H. Ring conceptu-

alized cellular telecommunications in an internal technical

memorandum. See 1946: First Mobile Telephone Call, avail-

able at http://www.corp.att.com/attlabs/reputation/timeline/

46mobile.html (last visited Mar. 5, 2007). Ring’s system

employed multiple transmission sites and re-used frequencies,

overcoming the limitations of the single-cell transmission sys-

tem that was constrained by the number of channels available

within the radio spectrum first allocated to mobile communi-

cations by the Federal Communications Commission (“FCC”)

in 1949. See Huber at 862 (citing General Mobile Radio Ser-

vice, Report and Order of the Commission, 13 F.C.C. 1190

(1949)). Ring’s concept did not, however, replace the single-

cell model until the 1980s. See HUBER at 864. Before cellular

technology took hold, the radio spectrum dedicated to mobile

communications supported only 140,000 subscribers. Id.

A. The Development of Cellular Technology

Nationwide wireless capacity grew as providers adopted

cellular technology and as the FCC gradually expanded the

7170 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

radio spectrum available to mobile telecommunications. See

id. at 903-08; see also FCC, Cellular Services: Band Plan,

available at http://wireless.fcc.gov/services/index.htm?job=

service_bandplan&id=cellular (last visited Mar. 5, 2007). In

June 1985, when the Cellular Telecommunication Industry

Association (“CTIA”) began its semi-annual survey of the

industry, the CTIA reported 203,600 domestic cellular sub-

scribers. See CTIA, Background on CTIA’s Semi-Annual

Wireless Industry Survey, available at http://files.ctia.org/pdf/

CTIAMidYear2006Survey.pdf (last visited Mar. 5, 2007)

(“CTIA Survey”). By June 2006, as we prepared to hear this

appeal, that number had grown to 219,420,457. Id.

The corresponding infrastructure necessary to support

today’s cellular technology is extensive. Cellular telecommu-

nications takes its name from the network of hexagonal cells,

which “resemble honeycombs,” blanketing the coverage area.

See Jeffrey Berger, Efficient Wireless Tower Sitting: An Alter-

native to Section 332(c)(7) of the Telecommunications Act of

1996, 23 TEMP. ENVTL. L. & TECH. J. 83, 87 (2004). Each cell

contains an antenna tower, which emits and receives signals

to and from the subscribers within its geographic area. Id. As

Ring originally proposed, users are seamlessly passed from

tower to tower as they move within the system. Id. Approxi-

mately 200,000 cellular sites currently support more than 200

million subscribers nationwide. See CTIA Survey.

The growing demand for cellular service requires the con-

struction of additional cellular sites, which has met with oppo-

sition in some communities. See Berger at 86 (describing the

opposition to cellular towers). Congress addressed growing

concern that the lack of a national wireless policy inhibited

growth of the industry in provisions of the Omnibus Budget

Reconciliation Act of 1993, Pub. L. No. 103-66, § 6001-03,

107 Stat. 312 (1993). The provisions, in addition to expanding

the radio spectrum available to wireless carriers, amended

section 332 of the Communications Act of 1934, 47 U.S.C.

§ 332, to address the “regulatory treatment of mobile ser-

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7171

vices.” See § 6002, 107 Stat. at 392-95 (codified at 47 U.S.C.

§ 332(c) (1988 & Supp. V 1993)).

B. The Telecommunications Act of 1996

Congress reaffirmed its commitment to nationwide tele-

communications and cellular service when it passed the TCA

in 1996. It announced its intent “to promote competition and

reduce regulation in order to secure lower prices and higher

quality services for American telecommunications consumers

and encourage the rapid deployment of new telecommunica-

tions technologies.” 110 Stat. at 56 (1996). The TCA, which

also amended the Communications Act of 1934, in part added

a section expressly preempting state and local regulations that

have the effect of prohibiting any telecommunications ser-

vice:

§ 253 Removal of Barriers to Entry

(a) In general

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 inter-

state or intrastate telecommunications ser-

vice.

(b) State regulatory authority

Nothing in this section shall affect the

ability of a State to impose, on a competi-

tively neutral basis and consistent with sec-

tion 254 of this title, requirements

necessary to preserve and advance univer-

sal service, protect the public safety and

welfare, ensure the continued quality of

7172 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

telecommunications services, and safeguard

the rights of consumers.

(c) State and local government authority

Nothing in this section affects the author-

ity of a State or local government to man-

age the public rights-of-way or to require

fair and reasonable compensation from tele-

communications providers, on a competi-

tively neutral and nondiscriminatory basis,

for use of public rights-of-way on a nondis-

criminatory basis, if the compensation

required is publicly disclosed by such gov-

ernment.

(d) Preemption

If, after notice and an opportunity for

public comment, the Commission deter-

mines that a State or local government has

permitted or imposed any statute, regula-

tion, or legal requirement that violates sub-

section (a) or (b) of this section, the

Commission shall preempt the enforcement

of such statute, regulation, or legal require-

ment to the extent necessary to correct such

violation or inconsistency.

(e) Commercial mobile service providers

Nothing in this section shall affect the

application of section 332(c)(3) of this title

to commercial mobile service providers.

§ 101, 110 Stat. at 70-71 (codified at 47 U.S.C. § 253(a)-(e)

(1994 & Supp. II 1996)) (hereinafter “removing barriers”).

Congress, by preempting state and local statutes, “ended the

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7173

States’ longstanding practice of granting and maintaining

local exchange monopolies.” AT&T Corp. v. Iowa Utils. Bd.,

525 U.S. 366, 405 (1999) (Thomas, J., concurring in part, dis-

senting in part); see also Cablevision of Boston, Inc. v. Pub.

Improvement Comm’n of Boston, 184 F.3d 88, 97-98 (1st Cir.

1999) (explaining that § 253 implements Congress’s “free

market vision” by preventing states and localities from main-

taining the “monopoly status of certain providers, on the

belief that a single regulated provider would provide better or

more universal service,” id. at 98).

In addition to § 253(a), which protects all common carriers,

the TCA amended the code provisions applicable to only

mobile services. See 47 U.S.C. § 332(c) (1994 & Supp. II

1996). Prior to passage of the TCA, § 332 included, among

other provisions, the factors the FCC must consider as it man-

ages the electromagnetic spectrum assigned to private mobile

services. See id. § 332(a) (1994). Section 332 also required

commercial mobile service providers to be treated as common

carriers (subject to limited exceptions that the FCC may

establish). See id. § 332(c) (1994). The TCA, though, added

subsection (c)(7), which expressly preserves the authority of

local governments to make decisions, subject to certain limi-

tations, regarding the placement of wireless service facilities:

(7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph,

nothing in this chapter shall limit or affect

the authority of a State or local government

or instrumentality thereof over decisions

regarding the placement, construction, and

modification of personal wireless service

facilities.

(B) Limitations

7174 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

(i) The regulation of the placement,

construction, and modification of personal

wireless service facilities by any State or

local government or instrumentality thereof

—

(I) shall not unreasonably discriminate

among providers of functionally equiva-

lent services; and

(II) shall not prohibit or have the effect

of prohibiting the provision of personal

wireless services.

(ii) A State or local government or

instrumentality thereof shall act on any

request for authorization to place, construct,

or modify personal wireless service facili-

ties within a reasonable period of time after

the request is duly filed with such govern-

ment or instrumentality, taking into account

the nature and scope of such request.

(iii) Any decision by a State or local

government or instrumentality thereof to

deny a request to place, construct, or mod-

ify personal wireless service facilities shall

be in writing and supported by substantial

evidence contained in a written record.

(iv) No State or local government or

instrumentality thereof may regulate the

placement, construction, and modification

of personal wireless service facilities on the

basis of the environmental effects of radio

frequency emissions to the extent that such

facilities comply with the Commission’s

regulations concerning such emissions.

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7175

(v) Any person adversely affected by

any final action or failure to act by a State

or local government or any instrumentality

thereof that is inconsistent with this sub-

paragraph may, within 30 days after such

action or failure to act, commence an action

in any court of competent jurisdiction. The

court shall hear and decide such action on

an expedited basis. Any person adversely

affected by an act or failure to act by a State

or local government or any instrumentality

thereof that is inconsistent with clause (iv)

may petition the Commission for relief.

§ 704, 110 Stat. at 151-52 (codified at 42 U.S.C. § 332(c)(7)

(1994 & Supp. II 1996)) (hereinafter “preserving local zoning

authority”).

The addition of § 332(c)(7) represented a conscious choice

by the House and Senate conferees to maintain limited state

and local control over the placement of wireless facilities. See

Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 406-

07 (3d Cir. 1999); Town of Amherst v. Omnipoint Communi-

cations Enters., Inc., 173 F.3d 9, 13 (1st Cir. 1999). The

House, concerned that “siting and zoning decisions by non-

federal units of government[ ] have created an inconsistent

and, at times, conflicting patchwork of requirements which

will inhibit the deployment of Personal Communications Ser-

vices as well as the rebuilding of a digital technology-based

cellular telecommunications network,” would have required

the FCC to regulate directly the placement of wireless facili-

ties. H.R. Rep. No. 104-204(I), at 94 (1995), reprinted in

1996 U.S.C.C.A.N. 10, 61. The conferees, however, created

§ 332(c)(7) in an effort to “prevent[ ] Commission preemption

of local and State land use decisions and preserve[ ] the

authority of State and local governments over zoning and land

use matters except in the limited circumstances set forth in the

7176 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

conference agreement.” H.R. Conf. Rep. No. 104-458, at 207-

08 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222.

C. The County’s Enactment of the Wireless

Telecommunications Facilities Ordinance

Against the backdrop of the TCA, the County, in April

2003, enacted Ordinance Number 9549, “An Ordinance

Amending the San Diego Zoning Ordinance Relating to Wire-

less Telecommunications Facilities.” The WTO supplements

the County’s general zoning ordinance (hereinafter “Zoning

Ordinance”) and creates a four-tier system for the granting of

wireless facility permits. According to the WTO a provider,

such as Sprint, must obtain one of four conditional use per-

mits before constructing a wireless facility: (1) Administrative

Site Plan Permit; (2) Site Plan with Community Review Per-

mit; (3) Minor Use Permit; or (4) Major Use Permit. WTO

§ 6985. Each class of permit defines the wireless facility proj-

ects that fall within its scope, based on factors including the

placement, visibility, and height of the proposed structure. Id.

We briefly summarize the permit application requirements

of the WTO. A permit applicant must: (1) identify the geo-

graphic area served by the site, list all of the applicant’s other

sites in the area, and describe why the site is necessary to the

applicant’s network; (2) submit a “visual impact analysis” that

describes the “maximum silhouette, viewshed analysis, color

and finish palette and proposed screening,” and includes sim-

ulated photographs of the site; and (3) create a narrative

detailing the site’s height, maintenance, noise emissions,

alternative placement in a preferred site (if the site does not

fall within one of the geographic areas preferred by the

County for wireless facilities), landscaping plan, fire service

plan, hazardous materials use, maintenance personnel parking

plan (if the site is located in a public right of way), “a letter

stating the applicant’s willingness to allow other carriers to

co-locate on their facilities whenever technically and econom-

ically feasible and aesthetically desirable,” and the “lease area

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7177

of the proposed facility on the plot plan.” See WTO §§ 6984,

6986(B). The WTO also discusses the general and design reg-

ulations applicable to wireless facilities, so that an applicant

may design a compliant facility. See WTO §§ 6985(C), 6987.

In addition to the provisions of the WTO, wireless provid-

ers that apply for use permits are subject to other requirements

contained in the Zoning Ordinance. The Zoning Ordinance

requires applicants to submit: (1) a list of “all persons having

a interest in the application as well as the names of all persons

having any ownership interest in the property involved;” (2)

complete plans for the site; and (3) an “appropriate environ-

mental impact review document.” See Zoning Ordinance

§ 7345(b).

Following submission of an application, the review pro-

cess, established by the Zoning Ordinance and the provisions

added by the WTO, reserves to the County’s permitting

authority significant discretion. Before a use permit is

granted, the authority must find that “the location, size,

design, and operating characteristics of the proposed use will

be compatible with adjacent uses, residences, or structures.”

Zoning Ordinance § 7358(a). The Zoning Ordinance lists

items of “consideration,” but leaves the authority to consider

“any other relevant impact of the proposed use.” Id.

§ 7358(a)(6). Additionally, the WTO requires that the deci-

sion maker must determine that the proposed facility is appro-

priately “camouflaged,” “consistent with community

character,” and designed to have minimum “visual impact.”

See WTO §§ 6985, 6987. Finally, the Zoning Ordinance, inter

alia, allows the County’s permitting authority to impose con-

ditions on the use consistent with the objectives of the Zoning

Ordinance, id. § 7362; to permit seemingly open-ended public

hearings, id. § 7356 (hearing before grant or denial of use per-

mit), § 7366(h) (hearing on appeal from grant or denial of use

permit); and to order revocation or modification of a use per-

mit following a violation, id. § 7382 (a)(2). The ordinance

7178 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

also observes that it is a misdemeanor or infraction to violate

a use permit’s conditions. Id. § 7703.

II.

Sprint and its co-plaintiff in the district court, Pacific Bell

Wireless, LLC, dba Cingular Wireless, brought a prima facie

challenge to the WTO, arguing that it was preempted by

§ 253(a) (removing barriers).1 Sprint suggested that the “oner-

ous” permitting structure of the WTO, and the discretion

retained by the County, prevented it from providing wireless

service. Sprint also argued that the four-tier permitting system

imposed by the WTO added an additional tier that was not

generally applicable to all telecommunications providers, and

thus the ordinance discriminated against wireless telecommu-

nications providers in violation of § 253(c) (addressing state

and local authority to manage the public rights-of-way) and

the Fourteenth Amendment to the Constitution. In addition to

a permanent injunction against the enforcement of the WTO,

Sprint sought § 1983 money damages and attorney’s fees. The

County, however, argued that § 253(a) was inapplicable to

zoning ordinances which regulate wireless providers. Rather,

the County suggested that § 332(c)(7) (preserving local zon-

ing authority) governed the ability of local governments to

regulate wireless facility placement and construction, and that

Congress provided in § 332(c)(7) the exclusive mechanism to

challenge zoning decisions.

The district court first addressed the applicability of

§ 253(a) when it considered the County’s motion under Fed-

eral Rule of Civil Procedure 12(b)(6) to dismiss. The court

held that the plain language of § 253(a) permitted a facial

challenge to a local ordinance, while § 332(c)(7) governed

challenges to individual facility placement decisions. Never-

1

The district court dismissed with prejudice the claims of Pacific Bell

Wireless on February 8, 2005, pursuant to a stipulation of dismissal filed

by the parties.

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7179

theless, Sprint’s § 253(c) and Fourteenth Amendment equal

protection claims failed, according to the court, because

§ 253(c) is a safe-harbor provision that does not give rise to

a separate cause of action. Sprint also failed to meet its burden

of refuting the rational basis for the WTO’s allegedly discrim-

inatory classification, which the court reasoned was its obliga-

tion in order to bring a Fourteenth Amendment claim. Finally,

the court permitted Sprint’s § 1983 claim to proceed because

the County only challenged in its Rule 12(b)(6) motion the

applicability of § 253(a).

The County next filed a Federal Rule of Civil Procedure

12(c) motion for judgment on the pleadings. It argued that

§ 253(a) did not create a private right of action, and thus

Sprint could not employ the statute to seek an injunction or

§ 1983 damages and fees. The County also argued that the

members of its Board of Supervisors, named by Sprint as

defendants in their individual capacities, were absolutely

immune from damages under § 1983. The district court,

applying the factors described in Cort v. Ash, 422 U.S. 66, 78

(1975), determined that Congress “impliedly created a private

right of action under § 253(a).” The court next recognized the

presumption in favor of enforcing federal rights under § 1983

and determined that the TCA did not foreclose the remedy.

Finally, the court agreed that the County of San Diego Super-

visors were immune from damages in their capacity as legis-

lators and dismissed them from the suit.

Sprint and the County filed motions for summary judg-

ment. Sprint argued that, as a matter of law, the WTO violated

§ 253(a) and therefore the court should enjoin enforcement of

the ordinance and award damages and fees under § 1983. The

County, inter alia, reasserted its argument that § 332(c)(7)

was the provision of the TCA applicable to the placement of

wireless telecommunications facilities and thus Sprint could

not bring a claim under § 253(a). The court granted Sprint’s

7180 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

request for a permanent injunction, but vacated its earlier rul-

ing that § 253(a) could support a claim for § 1983 damages.2

III.

In general we review a summary judgment order granting

a permanent injunction for abuse of discretion. Washington

State Republican Party v. Wash., 460 F.3d 1108, 1115 (9th

Cir. 2006). “However, ‘any determination underlying the

grant of an injunction [is reviewed] by the standard that

applies to that determination.’ ” Id. (quoting Ting v. AT&T,

319 F.3d 1126, 1134-35 (9th Cir. 2003)). Thus, we review the

district court’s findings of fact for clear error and its determi-

nations of law—including the determination that a local stat-

ute is preempted by federal law—de novo. See Ting, 319 F.3d

at 1135; see also Olympic Pipe Line Co. v. City of Seattle, 437

F.3d 872, 877 & n.12 (9th Cir. 2006); Qwest Communications

Inc. v. City of Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006)

(hereinafter “Berkeley”) (reviewing de novo district court’s

decision that § 253 preempted local right-of-way use ordi-

nance).

IV.

This appeal presents three related questions of law. The

threshold question is whether Sprint may seek a permanent

injunction against the enforcement of the WTO under

§ 253(a) (removing barriers). The second question is whether

the WTO violates § 253(a) as a matter of law. See, e.g.,

United States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003)

(“[A] facial challenge to the constitutionality of a statute is a

question of law”), see also United States v. Salerno, 481 U.S.

2

This case was originally assigned to the District Judge Judith Keep,

who ruled on the County’s motions to dismiss the case and for judgment

on the pleadings. Following Judge Keep’s death on September 14, 2004,

the case was reassigned to District Judge Barry Ted Moskowitz, who ruled

on the parties’ motions for summary judgment.

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7181

739, 745 (1987). The final question is whether Sprint may

recover money damages and fees arising from a violation of

§ 253(a) under § 1983.

A. The Availability of Injunctive Relief

The County first challenges the applicability of § 253(a)

(removing barriers) to local zoning ordinances, a matter of

first impression in this circuit. We must determine whether, as

a matter of law, § 253(a) may preempt a wireless facilities

zoning ordinance. The County concedes that § 253(a), which

covers all common carriers, is generally applicable to wireless

providers, but argues that § 332(c)(7) (preserving local zoning

authority) should govern challenges regarding the placement

and construction of wireless facilities.

1. Sprint’s Ability to Seek Injunctive Relief

As a threshold matter, we must consider whether Sprint has

standing to challenge the WTO under § 253(a). The County,

in filings before the district court, conceded the availability of

injunctive relief under the Supremacy Clause if the WTO was

within the preemptive scope of § 253(a). See U.S. Const. art.

VI, § 2. We nevertheless pause to consider the district court’s

jurisdiction. See Juidice v. Vail, 430 U.S. 327, 331 (1977)

(court must consider standing of party under Article III

despite failure of parties to raise the issue).

[1] We acknowledged in City of Auburn v. Quest Corpora-

tion that the Supremacy Clause permits the TCA to preempt

state and local statutes and regulations, though the court did

not squarely address Qwest’s standing. See City of Auburn v.

Qwest Corp., 260 F.3d 1160, 1175 (9th Cir. 2001) (hereinafter

“Auburn”) (observing that Supremacy Clause permits

§ 253(a) to expressly preempt local laws). See also Hillsbor-

ough County v. Automated Med. Labs., Inc., 471 U.S. 707,

712-13 (1985) (discussing preemption under the Supremacy

Clause); Shaw v. Delta Airlines, Inc., 463 U.S. 85, 96 n.14

7182 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

(1983) (“A plaintiff who seeks injunctive relief from state

regulation, on the ground that such regulation is pre-empted

by a federal statute which, by virtue of the Supremacy Clause

of the Constitution, must prevail, thus presents a federal ques-

tion which the federal courts have jurisdiction under 28

U.S.C. § 1331 to resolve.”); Puerto Rico Tel. Co. v. Munici-

pality of Guayanilla, 450 F.3d 9, 16 (lst Cir. 2006) (declining

to reach whether § 253(a) creates a private right because

injunctive relief sought under Supremacy Clause); Qwest

Corp. v. City of Santa Fe, 380 F.3d 1258, 1264 (10th Cir.

2004) (hereinafter “Santa Fe”) (applying Shaw to find

Qwest’s § 253(a) preemption claim federally justiciable under

the Supremacy Clause); N.J. Payphone Ass’n, Inc. v. Town of

West New York, 299 F.3d 235, 241-42 (3d Cir. 2002) (basing

§ 253 preemption on Supremacy Clause).

[2] The Sixth Circuit has expressed concern that standing

under the Supremacy Clause is inappropriate, absent a private

statutory right of action. See TCG Detroit v. City of Dearborn,

206 F.3d 618, 622 n.1 (6th Cir. 2000). The TCG Detroit court

declined to approve a case in the District Court for the West-

ern District of Texas that, like Auburn and the district court

in this case, proceeded under the Supremacy Clause despite

finding a lack of a private right under the TCA. See AT&T

Communications v. City of Austin, 975 F. Supp. 928, 936

(W.D. Tex. 1997), vacated as moot by, 235 F.3d 241 (5th Cir.

2000). The Sixth Circuit did not disclose the precise source of

its discomfort, but a footnote raised the concern that § 253(d)

might vest in the FCC exclusive or primary jurisdiction to

preempt state and local regulations. Nevertheless, we will not

disturb our approach in Auburn because we conclude that the

availability of injunctive relief is appropriate under Shaw. See

Santa Fe, 380 F.3d at 1264.

2. The Applicability of § 253(a) to Zoning

Ordinances Regulating Wireless Telecommunications

Facilities

The District Court twice held that § 253(a) may be

employed to assert a facial challenge to a wireless facilities

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7183

zoning ordinance. Both times the court reasoned that, on the

face of the TCA, § 253(a) addresses “State or local statute[s]

or regulation[s]” and § 332(c)(7) “decisions regarding the

placement, construction, and modification” of facilities. Thus,

while § 332(c)(7) may be used to challenge individual zoning

decisions, the court held that § 253(a) is a proper vehicle to

challenge an entire wireless facilities zoning ordinance.

a. The Distinction Between § 253(a) and

§ 332(c)(7)

The distinction between the application of § 253(a) (remov-

ing barriers) and § 332(c)(7) (preserving local zoning author-

ity), for purposes of this case, is significant. Both § 253(a) and

§ 332(c)(7)(B)(i)(II) employ similar language to limit states or

localities from prohibiting or effectively prohibiting personal

wireless service, the limitation upon which Sprint relies. Com-

pare 47 U.S.C. § 253(a) (“No State or local statute or regula-

tion, or other State or local legal requirement, may prohibit or

have the effect of prohibiting the ability of any entity to pro-

vide any interstate or intrastate telecommunications service.”)

with id. § 332(c)(7)(B)(i) (“The regulation of the placement,

construction, and modification of personal wireless service

facilities by any State or local government or instrumentality

thereof . . . (II) shall not prohibit or have the effect of prohib-

iting the provision of personal wireless services.”). Section

332(c)(7), however, further requires:

Any person adversely affected by any final action or

failure to act by a State or local government or any

instrumentality thereof that is inconsistent with this

subparagraph may, within 30 days after such action

or failure to act, commence an action in any court of

competent jurisdiction.

Id. § 332(c)(7)(B)(v).3 Moreover, the Supreme Court has

3

In addition to establishing a period of limitations for a claim,

§ 332(c)(7)(B) contains three substantive limitations on state or local deci-

7184 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

already held that claims brought under § 332(c)(7) do not sup-

port § 1983 damages or fees. See City of Rancho Palos Verdes

v. Abrams, 544 U.S. 113, 127 (2005) (holding that

“[e]nforcement of § 332(c)(7) through § 1983 would distort

the scheme of expedited judicial review and limited remedies

created by § 332(c)(7)(B)(v)”). Thus, it could be argued that

the period of limitations and certain unavailability of § 1983

damages make § 332(c)(7) a comparatively unattractive vehi-

cle to pursue a facial challenge to a wireless facilities zoning

ordinance.

b. The Novel Application of § 253(a)

The use of § 253(a) (removing barriers) to preempt an

entire wireless facilities zoning ordinance is a new and differ-

ent application of the TCA. Courts have frequently inquired

whether an individual zoning decision is contrary to

§ 332(c)(7)(B) (preserving local zoning authority). See, e.g.,

Omnipoint Communications, Inc. v. City of White Plains, 430

F.3d 529, 535 (2d Cir. 2005) (applying § 332(c)(7)(B)(i)(II)

to determine whether planning board must grant application

to construct wireless tower); MetroPCS, Inc. v. City & County

of San Francisco, 400 F.3d 715, 730-31 (9th Cir. 2005)

(“MetroPCS”) (applying § 332(c)(7)(B)(i)(II) to determine

whether denial of conditional use permit imposed a “general

ban” on new wireless service providers); USCOC of Virginia

sions regarding the placement of wireless facilities. The decision may not

“unreasonably discriminate among providers of functionally equivalent

services;” “prohibit or have the effect of prohibiting the provision of wire-

less services;” or be based on “the environmental effects of radio fre-

quency emissions to the extent that such facilities comply with the

Commission’s regulations concerning such emissions.” 47 U.S.C. § 332(c)

(7)(B)(i)(I), (B)(i)(II) & (B)(iv). The section also contains three procedural

limitations. The decision regarding placement must be in writing, sup-

ported by substantial evidence, and reached “within a reasonable period of

time.” Id. § 332(c)(7)(B)(ii) & (iii). See U.S. Cellular Tel. of Greater

Tulsa L.L.C. v. City of Broken Arrow, 340 F.3d 1122, 1132-33 (10th Cir.

2003).

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7185

RSA #3 v. Montgomery County Bd. of Supervisors, 343 F.3d

262, 267-68 (4th Cir. 2003) (applying § 332(c)(7)(B)(i)(II) to

determine whether denial of application to construct wireless

telecommunication tower had the effect of prohibiting ser-

vice); VoiceStream Minneapolis, Inc. v. St. Croix County, 342

F.3d 818, 833 (7th Cir. 2003) (applying § 332(c)(7)(B)(i)(II)

to challenge regarding individual zoning decision). Cf.

Abrams, 544 U.S. at 120-21 (assuming, arguendo, that § 332

creates individually enforceable rights but holding § 1983

damages not available). But, facial challenges to wireless

facilities zoning ordinances are rare. But cf. Nextel Partners

Inc. v. Kingston Township, 286 F.3d 687, 693 (3d Cir. 2002)

(finding facial challenge to wireless facilities zoning ordi-

nance brought under § 332(c)(7)(B)(i) moot because of inter-

vening change in ordinance).

The lack of cases challenging zoning ordinances is unsur-

prising because of the high burden faced by a party asserting

a facial challenge. See Salerno, 481 U.S. at 745 (“A facial

challenge to a legislative Act is, of course, the most difficult

challenge to mount successfully, since the challenger must

establish that no set of circumstances exists under which the

Act would be valid.”). Indeed, we have observed that it may

be particularly difficult to mount a facial challenge against a

zoning ordinance:

Zoning rules—such as those that allow local authori-

ties to reject an application based on “necessity”—

may not suggest on their face that they will lead to

discrimination between providers or have the effect

of prohibiting wireless services. Thus, in most cases,

only when a locality applies the regulation to a par-

ticular permit application and reaches a decision—

which it supports with substantial evidence—can a

court determine whether the TCA has been violated.

MetroPCS, 400 F.3d at 724.

7186 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

c. Statutory Interpretation of the TCA

[3] To decide whether § 253(a) (removing barriers) may be

used to invalidate a local wireless facilities zoning ordinance

we first examine the plain language of the statute. See United

States v. Ron Pair Enters., 489 U.S. 235, 241 (1989); Clark

v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162,

1168-69 (9th Cir. 2006). Courts are not, however, “bound by

the plain meaning of a statute where its literal application will

produce a result demonstrably at odds with the intention of its

drafters.” Clark, 460 F.3d at 1169 (quotation marks and cita-

tion omitted). Legislative history may inform the interpreta-

tion of a statute’s plain language “when there is clearly

expressed legislative intention contrary to that language,

which would require us to question the strong presumption

that Congress expresses its intent through the language it

chooses.” INS v. Cardoza-Fonseca, 480 U.S. 421, 433 n.12

(1987) (quotation marks and citation omitted). When a stat-

ute’s meaning is plain, a court may nevertheless avoid “a

result contrary to the statute’s purpose or lead to unreasonable

results.” United States v. Combs, 379 F.3d 564, 569 (9th Cir.

2004); see also United States v. Bahe, 201 F.3d 1124, 1133-

34 (9th Cir. 2000) (examining legislative history).

Here, the County argues that § 332(c)(7) (preserving local

zoning authority) specifically maintains local authority to

decide where and how wireless facilities are constructed and

contains a procedure for challenging those decisions. Con-

gress, therefore, must have intended, according to the County,

any challenge to a wireless facilities zoning ordinance to pro-

ceed under that section rather than the more expansive

§ 253(a), which is not limited to issues regarding wireless

facility placement. Any other reading would render the reser-

vation of local authority described in § 332(c)(7) moot. The

County also relies on the House and Senate conferees under-

standing of § 332(c)(7), reported in the House Conference

Report accompanying the TCA:

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7187

The conference agreement creates a new section 704

[U.S. Code § 332(c)(7)] which prevents Commission

preemption of local and State land use decisions and

preserves the authority of State and local govern-

ments over zoning and land use matters except in the

limited circumstances set forth in the conference

agreement.

H.R. Conf. Rep. No. 104-458, at 207-08 (1996), reprinted in

1996 U.S.C.C.A.N. 124, 222.

i. Plain Meaning of the TCA

[4] The County’s insistence that any challenge to a local

zoning ordinance be lodged under § 332(c)(7)(B)(i)(II)

ignores the plain meaning and structure of the TCA. Section

253(a) (removing barriers) is located in Chapter 5, “Wire or

Radio Communications,” of United States Code Title 47. We

have recognized the “preemptive language [of § 253(a)] to be

clear and ‘virtually absolute’ in restricting municipalities to a

‘very limited and proscribed role in the regulation of telecom-

munications.’ ” Berkeley, 433 F.3d at 1256 (citation omitted).

Section 253 protects all common carriers, and applies to

“commercial mobile service” providers unless FCC rulemak-

ing suspends application of the section. See 47 U.S.C.

§ 332(c)(1)(A). The FCC has not exempted mobile service

providers from the protections of § 253; to the contrary, FCC

decisions apply § 253 to claims that a state or local statute

regulating wireless service providers violates the substantive

provisions of the TCA.4 See, e.g., In re Pittencrieff Communi-

4

We have not located an FCC decision directly addressing the applica-

bility of § 253 to zoning ordinances—rather than other state and local

ordinances such as those regulating franchising—governing wireless pro-

viders. The FCC tentatively expressed the opinion that it could invalidate

a zoning ordinance under § 253. See In re Cellular Telecomm. Indus.

Ass’n, 12 F.C.C.R. 11795, 11797 (1997) (request for comment on supple-

mental pleading cycle). In that administrative proceeding, the CTIA chal-

7188 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

cations, Inc., 13 F.C.C.R. 1735 (1997), aff’d sub nom. Cellu-

lar Telecomm. Indus. Ass’n v. FCC, 168 F.3d 1332 (D.C. Cir.

1999). Thus, § 253(a) applies on its face to local ordinances

that have the effect of prohibiting wireless service.

Nevertheless, the County contends that applying § 253(a)

would frustrate the purpose of § 332(c)(7) (preserving local

zoning authority). In Abrams the Supreme Court observed

that § 332(c)(7) “imposes specific limitations on the tradi-

tional authority of state and local governments to regulate the

location, construction, and modification of such facilities.”

544 U.S. at 115. In that case the Court assumed, arguendo,

that § 332(c)(7) created “individually enforceable rights,”

which could be the basis for seeking injunctive relief through

the private right of action created by § 332(c)(7)(B)(v). Id. at

120, 127. The Court went on to determine that the “expedited

judicial review and limited remedies created by

§ 332(c)(7)(B)(v)” foreclosed enforcement of § 332(c)(7)’s

limitations through § 1983. Id. at 127.

In the present litigation, however, we are asked to examine

the general provisions of § 253(a) rather than the specific lim-

itations of § 332(c)(7). Sprint does not resort to the substan-

tive or procedural limitations that are unique to § 332(c)(7).

lenged a moratorium on the construction of telecommunications facilities.

The FCC invited comment regarding its tentative conclusion that,

Section 332(c)(7)(B)(v) does not, however, limit our authority to

review local facility siting moratoria which may constitute entry

barriers under Sections 253(d) or entry regulations under

332(c)(3).

Id. at 11796. The CTIA, however, withdrew its petition for review before

the FCC issued a final order expressing its opinion on the applicability of

§ 253. See In re Cellular Telecomm. Indus. Ass’n, 14 F.C.C.R. 9174

(1999). In a separate proceeding, the FCC examined whether a local ordi-

nance limiting the placement of payphones on private land violated

§ 253(a), and determined that it did not. See In re Cal. Payphone Ass’n,

12 F.C.C.R. 14191 (1997).

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7189

Rather, the company seeks enforcement of a preemption that

is common to both § 253(a) and § 332(c)(7)(B)(i)(II). Thus,

we find the distinction that the County draws illusory. Section

253(a) lacks the period of limitations created by

§ 332(c)(7)(B)(v), but it also lacks the specific limitations that

give an individual greater latitude to challenge a zoning deci-

sion under § 332(c)(7). The choice to pursue a prima facie

challenge under § 253(a) or an individual challenge under

§ 332(c)(7) is real, but that choice does not imply that one

section must undermine the other.

[5] Interpreting § 253(a) to preempt certain local wireless

zoning ordinances does not negate the substantive and proce-

dural elements of § 332(c)(7). See Boise Cascade Corp. v.

EPA, 942 F.2d 1427, 1432 (9th Cir. 1991) (courts must make

“every effort not to interpret a provision in a manner that ren-

ders other provisions of the same statute inconsistent, mean-

ingless or superfluous”). Section 332(c)(7) prescribes a

“restrictive private remedy” for individuals seeking “[j]udicial

review of zoning decisions.” See Abrams, 544 U.S. at 121,

122. The procedure for judicial review allows individuals to

challenge “any final action or failure to act by a State or local

government or any instrumentality thereof[.]” 47 U.S.C.

§ 332(c)(7)(B)(v). A judicial proceeding must be brought

within thirty days of the state’s or locality’s action or failure

to act. Id.

[6] The County argues that permitting a facial challenge to

an entire ordinance under § 253(a) would create a “giant loop-

hole” in § 332(c)(7). But, that argument ignores § 332(c)(7)’s

preferential treatment of challenges to individual zoning deci-

sions and the additional limitations and requirements that

§ 332(c)(7) places on zoning authorities. A zoning decision

might be challenged because it does not comply with the pro-

cedural requirements of § 332(c)(7). See id. § 332(c)(7)(B)(ii)

& (iii) (decision must be in writing, supported by substantial

evidence, and reached “within a reasonable period of time.”).

The decision might also violate the substantive provisions of

7190 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

the section. See id. § 332(c)(7)(B)(i)(I), (II) & (iv) (decision

may not unreasonably discriminate among providers, prohibit

or have the effect of prohibiting service, or be based on radio

emission levels that are acceptable to the FCC). Section 253,

by contrast, states only that a statute or regulation may not

prohibit or have the effect of prohibiting service. See id.

§ 253(a). The substance of the sections is therefore different

and, even though § 253(a) does not place a thirty-day period

of limitation on facial challenges, § 332(c)(7)’s period of limi-

tation for challenges to individual zoning decisions would be

left intact. Cf. Abrams, 544 U.S. at 126 (“[c]onstruing

§ 332(c)(7) . . . to create rights that may be enforced only

through the statute’s express remedy” (emphasis added)).

Ultimately, the difficulty of raising a facial challenge to a

zoning regulation, see MetroPCS, 400 F.3d at 724, would

likely prevent the scenario that the County suggests; wireless

providers could not simply avoid § 332(c)(7)’s period of limi-

tation by styling their challenges to individual zoning deci-

sions as facial challenges under § 253(a).5 Rather, § 332(c)(7)

would continue to offer a more expedient, and extensive,

basis for review.

[7] Additionally, other provisions contained in § 253 sug-

gest that Congress did not perceive a contradiction between

§ 253(a) and § 332(c)(7). Congress expressly recognized the

potential of § 253(a) to interfere with other provisions of

§ 332. Section 253(e) exempts from preemption § 332(c)(3)

5

The County also argues that we have established a “more lenient stan-

dard” for successful facial challenges under § 253(a) than under

§ 332(c)(7)(B)(i), relying on a supposed conflict between dicta in

MetroPCS, 400 F.3d at 724, 725 n.3, 727 (alluding to the difficulty under

§ 332(c)(7)(B) of bringing facial challenge based on a single zoning deci-

sion) and Auburn, 260 F.3d at 1175 (discussing under § 253(a) a facial

challenge to a franchise regulation). Though we conclude here that

Sprint’s challenge to the WTO meets the criterion described in Auburn for

challenging an ordinance, we reject the argument that we have lowered the

threshold suggested by MetroPCS for a successful facial challenge predi-

cated on a zoning decision.

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7191

(addressing limited state regulation of wireless service rates).

See 47 U.S.C. § 253(e). Congress also excluded from

§ 253(a)’s preemptive scope state and local regulations requir-

ing “fair and reasonable” compensation for the use of public

rights-of-way and requiring telecommunications providers to

serve rural areas. See id. § 253(c), (f). Had Congress harbored

a similar concern that § 253(a) could negate the protections

allegedly extended by § 332(c)(7) it could have included a

similar exemption, but it did not do so. Because this series of

exclusions demonstrates Congress’s awareness that § 253

could affect § 332, and because the existing exclusions

address traditionally local provinces like the management of

rights-of-way, we interpret— expressio unius est exclusio

alterius —Congress’s failure to omit § 332(c)(7) from the

reach of § 253(a) as an affirmation of § 253(a)’s applicability

to state and local wireless zoning ordinances.6 See Clark, 460

F.3d at 1169; Austein v. Schwartz (In re Gerwer), 898 F.2d

730, 732 (9th Cir. 1990) (“The express enumeration indicates

that other exceptions should not be implied.”).

ii. Legislative History of the TCA

Because the plain language of § 253(a) (removing barriers)

permits facial challenges to zoning ordinances, we need only

6

“The expression of one is the exclusion of another.” The Supreme

Court has recently reminded courts of the limits of this canon of statutory

interpretation. It cautioned that the canon “does not apply to every statu-

tory listing or grouping; it has force only when the items expressed are

members of an ‘associated group or series,’ justifying the inference that

items not mentioned were excluded by deliberate choice, not inadver-

tence.” See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (cita-

tion omitted). Here, although Sprint does not make direct reference to the

canon, it argues that we should interpret Congress’s failure to exclude

§ 332(c)(3) from § 253(a)’s preemptive scope as evidence that Congress

intended the two sections to be enforced together. Though one exclusion

is alone insufficient to apply the canon, see Chevron U.S.A. Inc. v.

Echazabal, 536 U.S. 73, 81 (2002), the series of exclusions contained in

§ 253 represents a sufficient basis to determine that Congress considered,

but rejected, excluding § 332(c)(7) from the scope of § 253(a).

7192 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

examine the legislative history of the TCA to confirm that the

language is not “demonstrably at odds with the intention of its

drafters.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,

571 (1982). We conclude that the legislative history of the

TCA does not indicate that Congress intended a result con-

trary to the plain reading of the statute.

Relying on the House Conference Report accompanying

the TCA, we have recognized that, “one of the primary pur-

poses of section 332(c)(7) is to protect the legitimate tradi-

tional zoning prerogatives of local governments.” MetroPCS,

400 F.3d at 727 n.5. The conferees inserted § 332(c)(7) (pre-

serving local zoning authority) to rebuff a House provision

that “would have given authority to the FCC to regulate

directly the siting of wireless communications towers” and

thus completely preempt local zoning decisions. See St. Croix,

342 F.3d at 828-29.

[8] There is no indication, however, that Congress feared

§ 253(a)’s preemption language would endanger local zoning

ordinances it intended to permit under § 332(c)(7). Indeed,

both § 253(a) and § 332(c)(7)(B)(i)(II) proscribe substantively

the same local regulations: those that prohibit or have the

effect of prohibiting personal wireless service. The Confer-

ence Report explains, in the context of § 332(c)(7), that “[i]t

is the intent of this section that bans or policies that have the

effect of banning personal wireless services or facilities not be

allowed and that decisions be made on a case-by-case basis.”

See H.R. Conf. Rep. No. 104-458, at 208. The similar lan-

guage of the sections and the Conference Report demonstrates

that § 253(a) is consistent with the substantive provision of

§ 332(c)(7)(B)(i)(II).

For purposes of this appeal, the principal distinction

between the two sections is § 332(c)(7)(B)(v)’s thirty-day

period of limitations. The Conference Report does not explain

the intent of the limitation, though it is generally consistent

with the conferee’s requirement that the court selected by the

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7193

individual challenging the zoning decision “act expeditiously

in deciding such cases.” See H.R. Conf. Rep. No. 104-458, at

209. We have, however, found no legislative history that sug-

gests Congress intended to limit facial challenges to the

thirty-day period following some event, whether the passage

of the state or local regulation challenged or a particular zon-

ing decision applying a state or local regulation.

[9] Thus, the legislative history of § 253 and § 332(c)(7)

does not undermine our plain reading of the sections. We

need not examine the legislative history further.

B. Preemption of the WTO

We next consider whether the WTO is preempted by the

TCA. The County argues that the additional requirements

imposed by the WTO are consistent with general zoning prin-

ciples and fall short of the conditions that caused our court to

preempt the City of Auburn’s franchise ordinance. See

Auburn, 260 F.3d at 1176. Sprint contends that the WTO is

an “onerous” system of requirements that shares many of the

restrictions that amounted to an effective prohibition on wire-

less service in Auburn. Sprint also argues that the WTO is not

“competitively neutral” because it regulates wireless provid-

ers in a manner not applicable to all utility providers and lik-

ens the degree of regulation to that “usually reserved for

landfills, cemeteries and power plants,” not utilities.

The district court gleaned a set of concerns from cases dis-

cussing preemption of local ordinances under § 253(a). See

Auburn, 260 F.3d at 1176 (invalidating local franchising ordi-

nance); Santa Fe, 380 F.3d 1258 (preempting right-of-way

ordinance that, inter alia, increased rent, imposed costly new

equipment requirement, and permitted unfettered discretion);

Cox Communications PCS, L.P. v. City of San Marcos, 204

F. Supp. 2d 1260 (S.D. Cal. 2002) (considering whether regu-

lations requiring conditional use permit to install facilities in

public right-of-way violated § 253(a)); Qwest Comm. Corp. v.

7194 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

City of Berkeley, 146 F. Supp. 2d 1081 (N.D. Cal. 2001) (con-

sidering whether public right-of-way ordinance violated

§ 253(a)). Informed by those opinions, the 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.

[10] In Auburn we identified the factors considered by the

district court in this case. See Auburn, 260 F.3d at 1175-76.

Our concerns here are almost identical. The County’s WTO,

on its face, supplements the Zoning Ordinance by adding sub-

mission requirements to an already voluminous list. See WTO

§ 6984. Those requirements are in addition to the open-ended

discretion and threat of criminal penalties contained in the

Zoning Ordinance. The WTO itself explicitly allows the deci-

sion maker to determine whether a facility is appropriately

“camouflaged,” “consistent with community character,” and

designed to have minimum “visual impact.” See WTO

§§ 6985, 6987. We find the County’s retort—that the ele-

ments of the WTO challenged by Sprint are traditional facets

of zoning that are unobjectionable for the simple reason that

the WTO is a zoning ordinance rather than a franchise or pub-

lic right-of-way ordinance—unconvincing. Though Auburn

discussed a franchise ordinance, our concerns in this case are

largely the same. We conclude that the WTO imposes a per-

mitting structure and design requirements that presents barri-

ers to wireless telecommunications within the County, and is

therefore preempted by § 253(a).

C. Section 1983 damages and fees

Finally, we consider the availability of § 1983 damages and

fees. The district court, reversing its earlier holding, deter-

mined that § 253(a) (removing barriers) does not create a pri-

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7195

vate right enforceable through § 1983. The court’s holding is

consistent with the Tenth Circuit’s position, Santa Fe, 380

F.3d at 1266-67 (§ 253(a) does not create a private right), but

presents a question of first impression in our circuit. Cf. Bell

South Telecomm., Inc. v. Town of Palm Beach, 252 F.3d

1169, 1191 (11th Cir. 2001) (interpreting § 253 to create an

implied private right of action when the challenged regulation

concerns the use of public rights-of-way, implicating

§ 253(c)’s safe-harbor); TCG Detroit, 206 F.3d at 624 (same).

No other circuit court has reached the issue. The district

courts in this circuit have overwhelmingly concluded that

§ 253(a) neither creates a right enforceable under § 1983, nor

implies a separate private right of action.7 See Pacific Bell Tel.

Co. v. City of Walnut Creek, 428 F. Supp. 2d 1037, 1054

(N.D. Cal. 2006) (finding that § 253(a) creates no private

right enforceable under § 1983); Qwest Communications

Corp. v. City of Berkeley, 202 F. Supp. 2d 1085, 1090-96

(N.D. Cal. 2001) (finding no implied private right of action

under § 253(a) or § 253(c)); Pacific Bell Tel. Co. v. City of

Hawthorne, 188 F. Supp. 2d 1169, 1172-75 (C.D. Cal. 2001)

(finding § 253(c) creates an implied private right of action but

that § 253(a) and (b) do not).

7

The question in this case, of whether § 253(a) creates a right enforce-

able under § 1983, overlaps with but is distinct from the question of

whether the statute implies a separate cause of action. As we have earlier

explained, “The main difference between an implied cause of action and

a right enforceable under Section 1983 turns on the source of the remedy.

A plaintiff invoking an implied right of action must demonstrate that Con-

gress intended to create not only a private right but also a private remedy.

In contrast, once a plaintiff demonstrates that a statute confers an individ-

ual right, the right is presumptively enforceable by § 1983, and the plain-

tiff need not show any further congressional intent to create a remedy.”

Price v. City of Stockton, 390 F.3d 1105, 1109 n.3 (9th Cir. 2004) (cita-

tions and quotation marks omitted). The test in Cort v. Ash, 422 U.S. 66

(1975), discussed by the district court, is used to determine whether a stat-

ute implies a private right of action, but not for determining whether a stat-

ute creates a right enforceable under § 1983.

7196 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

[11] Section 1983 “by itself does not protect anyone against

anything,” Chapman v. Houston Welfare Rights Org., 441

U.S. 600, 617 (1979), and thus the question for us is whether

§ 253(a) independently confers a right on Sprint. Our inquiry

differs from the question of whether Sprint may seek enforce-

ment of § 253(a) by bringing its preemption action under the

Supremacy Clause of the Constitution. See Golden State

Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106-08

(1989) (“Given the variety of situations in which preemption

claims may be asserted, in state court and in federal court, it

would obviously be incorrect to assume that a federal right of

action pursuant to § 1983 exists every time a federal rule of

law pre-empts state regulatory authority.” Id. at 107-08).

Here, three requirements guide our inquiry into whether Con-

gress created a right enforceable under § 1983: “1) that Con-

gress intended the statutory provision to benefit the plaintiff;

2) that the asserted right is not so ‘vague and amorphous’ that

its enforcement would strain judicial competence; and 3) that

the provision couch the asserted right in mandatory rather

than precatory terms.” Watson v. Weeks, 436 F.3d 1152, 1158

(9th Cir. 2006) (citing Blessing v. Freestone, 520 U.S. 329,

340-41 (1997)) (citations omitted). With regard to the first

requirement, we have recognized that “congressional intent to

benefit the plaintiff must be shown by statutory language

phrased in terms of the persons to be benefited. Anything

short of an unambiguously conferred right will not support a

1983 action.” Id. at 1159 (quoting Gonzaga Univ. v. Doe, 536

U.S. 273, 283, 284 (2002)) (citations and quotation marks

omitted).

Neither § 253(a), nor, for that matter, any other subpart of

§ 253, mentions the beneficiaries of the section. Section 253

is phrased only in terms of the parties restricted — in this

case, states and local entities. Indeed, to the extent that any

language of the TCA discusses any beneficiaries, it points to

“American telecommunications consumers” rather than tele-

communications providers. See 110 Stat. at 56 (stating that

the Act’s purpose is “to promote competition and reduce reg-

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 7197

ulation in order to secure lower prices and higher quality ser-

vices for American telecommunications consumers and

encourage the rapid deployment of new telecommunications

technologies”). In other words, § 253(a) does not designate

companies like the plaintiffs in this case as the “identifiable

class” required for an enforceable § 1983 right. See Gonzaga

Univ., 536 U.S. at 284 (quoting Touche Ross & Co. v. Reding-

ton, 442 U.S. 560, 576 (1979)). We thus agree with the Tenth

Circuit that § 253(a) does not create a right enforceable under

§ 1983.

[12] To the extent that Sprint also argues Congress created

an implied private right of action, we rejected that argument

as well. The Court has described four factors that explore

whether a statute implies a private right of action, see Cort,

422 U.S. at 95, but among those factors Congressional intent

is paramount. See Northwest Airlines, Inc. v. Transp. Workers

Union of Am., 451 U.S. 77, 94 (1981); Thompson v. Thomp-

son, 484 U.S. 174, 179 (1988); Currier v. Potter, 379 F.3d

716, 725 (9th Cir. 2004) (recognizing the Court’s subsequent

interpretation of the Cort factors). The legislative history of

§ 253, however, does not support the conclusion that an

implied private right of action exists. Senators, in the course

of debating the TCA, expressed concern that local govern-

ments would bear a heavy burden in defending their ordi-

nances before the FCC in Washington, D.C., and thus inserted

§ 253(c)’s public rights-of-way provision. See Santa Fe, 380

F.3d at 1266-67 (discussing the legislative history of the

TCA). It would be inconsistent with this concern to find that

Congress intended to expose municipalities to liability

through an implied private right of action. We need not exam-

ine the remaining Cort factors. Currier, 379 F.3d at 725-26

(citing In re Wash. Pub. Power Supply Sys. Sec. Litig., 823

F.2d 1349, 1354 (9th Cir. 1987) (“Even if the first factor were

satisfied, we find that plaintiffs have failed to clear the second

and third Cort v. Ash hurdles[.]”)).

7198 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

V.

When Congress passed the TCA in 1996 it expressed its

intent to remove barriers inhibiting the development of tele-

communications service. Though the act did not “federalize

telecommunications land use law,” Southwestern Bell Mobile

Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001), it estab-

lished meaningful limits beyond which state and local govern-

ments may not inhibit telecommunications by preventing the

construction of wireless communications facilities. Accord-

ingly, we determine that local zoning ordinances regulating

the construction and placement of wireless communications

facilities are within the preemptive scope of § 253(a) (remov-

ing barriers). Moreover, the County’s WTO is outside the

scope of permissible land use regulations because it has the

effect of prohibiting wireless communication services. We

thus affirm the decision of the district court that § 253(a) pre-

empts the WTO as a matter of law. Finally, we conclude that

§ 253(a) does not create a private right of action enforceable

under § 1983 and affirm the district court’s denial of relief

under the section.

Our decision today does not reach the permissibility of the

County’s general zoning ordinance, which was not litigated in

this case. We AFFIRM the judgment of the district court.