finding that Sprint’s facial challenge to San Diego ordinance that regulated the placement of small wireless facilities failed to show that no set of circumstances existed under which the regulations would be valid
How later courts described this case
- finding that Sprint’s facial challenge to San Diego ordinance that regulated the placement of small wireless facilities failed to show that no set of circumstances existed under which the regulations would be valid
- overruling City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001), and holding that “a plaintiff suing a municipality under section 253(a) must show actual or effec- tive prohibition, rather than the mere possibility of prohibi- tion” (citation omitted)
- rejecting a facial preemption challenge to a local ordinance because the plaintiff failed to “establish that no set of circumstances exists under which [the ordinance] would be valid”
- stating that the zoning board may consider “other valid public goals such as safety and aesthet- ics”
Written by the judges who cited it.
The opinion
GOULD, Circuit Judge,
concurring:
I concur in full in Judge Graber’s majority opinion, holding that Section 253(a) preempts any state or local law that actually or effectively prohibits provision of telecommunication services. I write separately to add my view that normally local governments will have the ability to enforce reasonable zoning ordinances that might affect where and how a cellular tower is located, but that will not effectively prohibit cellular telephone service. Zoning ordinances, in my view, will be preempted only if they would substantially interfere with the ability of the carrier to provide such services. Cases of a preempted zoning ordinance will doubtless be few and far between, and the record in this case shows that telecommunication services here were not effectively barred by the zoning ordinance.