Petition for Writ of Certiorari — Sprint Telephony PCS, LP v. San Diego County (No. 08-759)

Supreme Court brief2008

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SPRINT TELEPHONY PCS, L.P., PETITIONER

Vv.

COUNTY OF SAN DIEGO, ET AL.

ON PETITION FOR A WRIT OF CEPTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DANIEL T. PASCUCCI KANNON K. SHANMUGAM

NATHAN R. HAMLER Counsel of Record

MINTZ, LEVIN, COHN, FERRIS, THOMASJ. ROBERTS

GLOVSKY AND POPEO, P.C. SARAH F.. TEICH

3580 Carmel Mountain WILLIAMS & CONNOLLY LLP

Road, Suite 300 725 Twelfth Street, N.W.

San Diego, CA 92130 Washington, DC 20005

(858) 314-1500 (202) 484-5000

QUESTION PRESENTED

Section 253(a) of the Communications Act of 1934 (as

added by the Telecommunications Act of 1996), 47 U.S.C.

253(a), provides that “[n]Jo State or local statute or regu-

lation, or other State or local legal requirement, may

prohibit or have the effect of prohibiting the ability of

any entity to provide any interstate or intrastate tele-

communications service.” The question presented is as

follows:

Whether a state or local regulation that does not ex-

pressly prohibit the provision of telecommunications ser-

vice is nevertheless preempted by 47 U.S.C. 253(a) if it

substantially impedes an entity from providing service.

(1)

PARTIES TO THE PROCEEDING

Petitioner is Sprint Telephony PCS, L.P., a wholly

owned subsidiary of Sprint Nextel Corporation. Re-

spondents are the County of San Diego and Greg Cox,

Dianne Jacob, Bill Horn, Ron Roberts, and Pam Slater-

Price, Members of the Board of Supervisors of the

County of San Diego.

(11)

TABLE OF CONTENTS

Page

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Reasons for granting the Petition.............cessssensecssesserseoncensssens 12

A. The decision below conflicts with the

decisions of several other courts of appeals................. 12

B. The court of appeals’ interpretation of

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C. The question presented is an important

one that is ripe for this Court’s review... ra

D. This case is an ideal vehicle for considering

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TABLE OF AUTHORITIES

Cases:

AT&T Corp. v. lowa Utilities Board, 525 U.S.

Cablevision of Boston, Inc. v. Public Im-

provement Commission, 184 F.3d 88 (1st

Ae RR NT RIOR AE LS POOR TE LD RENN TIEN OEE MR vine

In re California Payphone Association, 12

aR ee ARS Te: | Renee nee MnO Ben 10, 13, 14, 15, 20

Chevron U.S.A. Inc. v. Natural Resources De-

fense Councdl, Inuc., 467 U.S. SBT (194) wovvscscsccsvscosccsevsains 20

(II1)

Page

Cases—continued:

In re Cheyenne River Sioux Tribe Telephone

Pe FE ie I ai voir hiss acsvecictrc rnin 20

City of Abilene v. FCC, 164 F.3d 49 (D.C. Cir.

PN ics ailapstbisaoniascagualiesna eadentacidinbenneie nicchetanidpuseued 17

City of Auburn v. Qwest Corp., 260 F.3d 1160

(9th Cir. 2001), cert. denied, 534 U.S. 1079

ON ia Sacre siceasecsstomseiconcndesiripcabeaneestntecseiveuns 9, 16, 19, 24, 25

City of Rancho Palos Verdes v. Abrams, 544

As ee NS aii nl ss dade ainacihiniadisietiaanecnnaseesuaseniadas =

Level 3 Communications, L.L.C. v. City of St.

Louis, 477 F.8d 528 (8th Cir. 2007) .....cccrcccssececocesess passim

Level 3 Communications, L.L.C. v. City of St.

Lours, 405 F. Supp. 2d 1047 (E.D. Mo. 2008).................. 28

In re Low Tech Designs, Inc., 13 F.C.C.R. 1755

E ._, : PARNER DES REED NO RDL Rents DE IEE REO SEY Aes nS ati a ae 20

New Jersey Payphone Association v. Town of

West New York, 299 F.3d 235 (8d Cir. 2002).............0..... 17

New York SMSA Ltd. P’ship v. Town of Clark-

stoum, No. 7:07-ev-07637-CS (S.D.N_.Y. filed

I I a iccacate etacaie eckn cae alnisic ois an dace ase wink apc esiohnsonic 22

Newpath Networks, L.L.C. v. City of Irvine,

Nos. 08-55755 & 08-56010 (9th Cir. appeal

RE I ire aac vs hisewadesdunecedetuacmciuvencmcsiicaseuaein’ 22

NextG Networks of Cal., Inc. v. City of Hunt-

ington Beach, No. 8:07-ev-01471 (C.D. Cal.

ON rg os ant icacha cscs eeiaskeeecbeviiccenssbahesbasecteunta 22

Nixon v. Missouri Municipal League, 541

Ee, Fe ic ckatsrhe acertecatbnanl sacs adactvomeieenel 18, 22

In re Pittencrieff Communications, Inc., 13

ee OE hE 5 SION Ra Rly Ren UEC OON Nae ERNE 20

In re Public Utility Commission, 13 F.C.C.R.

SN I Saree ead oti oan ae edd apceraautialoaommansareavecnannss 4,20

Puerto Rico Telephone Co. v. Municipality of

Guayanilla, 450 F.3d 9 (1st Cir. 2006) .......... 10, 13, 19, 20

Qwest Communications, Ine. v. City of Berke-

Cae, SS Pe Se Cee Sis I oiiniknsiicecni tennessee 24

Page

Cases—continued:

Qwest Corp. v. City of Santa Fe, 380 F.3d 1258

Ne a seascape scarica sececencntenepetaeonaincaleelaiadbiemins passim

TCG Detroit v. City of Dearborn, 206 F.3d 618

rs eee 27

TCG New York, Inc. v. City of White Plains,

305 F.3d 67 (2d Cir. 2002), cert. denied, 538

as i ccesalacd ts caericeruicetacsctdsposidemunisaseb inc ticsbuciod aeons passim

In re TCI Cablevision of Oakland County,

aM eM Soke .. ; So eee 3, 20

United States v. Salerno, 481 U.S. 739 (1987)........ 11, 20, 21

Verizon Communications, Inc. v. FCC, 535

A I acre ice etstonieidionciteen abcde diisaderstoasamuanacaante 18

Statutes and ordinances:

Telecommunications Act of 1996, Pub. L. No.

104-104, Preamble, 110 Stat. SG q..........cccccecescscscccceverecsccosess 3

2 ES Gath. |) AREA ee ee Re Re RECA Renee ee ae 2

A ae i didi cinssins vinvnsacesdthotisinntesstavebicceedcensmnalaaaiae 1.22

A a I seis vcossoensrctneciardeoenananevisadarseatodsielashidaaalde passim

rs eile, I clos saeccmsirs cs-ucoanssvecanaieoseaeabuidiondanielarae 7, 8, 27, 28

Ce Sy» nn a ee mem ae ee Se A 22, 25, 26

San Diego County Zoning Ordinance:

BR scdinid caistdiopustondaatbraign anuidanskaateatedieaanaamanee 4

BI ia tisasrecachaicscnledeensbiccrctciadas dae seinen 4, 5, 6, 24

§ 6988 ........ sdsilivenbcilasangah adoeiebislabdaeeuiabliniddes seid Ledeen 5, 6, 24

2 ROO EN RU ELC PE Aer RAET Gert 3 5

BI cs cesinciccnccnvapheondeteencsbicnscocisenchanueiccdaeia manta aan 2

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OF III 4saksdssonshic lebanese lpvcuashcousasdaaasonesa tani eaten aaa 6

RPE EL ENT REUTERS TI LI PAL 6

Miscellaneous:

Steven J. Eagle, Wireless Telecommunica-

tions, Infrastructure Security, and the

NIMBY Problem, 54 Cath. U. L. Rev. 445

| BSE SE a Oe eee ae ee ee 29

FCC, Twelfth Annual Report on the State of

Competitive Market Conditions With Re-

spect to the Wireless Industry, Report No.

08-28 (2008) <http://hraunfoss.fee.gov/

edocs_public/attachmatch/F CC-08-

in cat aainaesipned/ acai no sebeanoanenbiaens 29

H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess.

(hE ARCSIE LS PSUR OSES OOS ee EOE TER Deve nee eNO 3

H.R. Rep. No. 204, 104th Cong., Ist Sess.

ak ae 5c ae ccadacabah ane bbipneredcieeoineioei’ 3.23

Memorandum from Wendy Cosins, Deputy

Planning Director, to Members of the Berke-

ley Planning Commission (Nov. 5, 2008)

<http://www.tinyurl.com/berkeleymemo> .............. 23, 24

Malcolm J. Tuesley, Note, Not in My Back-

yard: The Siting of Wireless Communica-

tions Facilities, 51 Fed. Comm. 1...J. 887

I cata ciea ta canlgiangcunbend keacuckonnieiic 29

5. Rep. No. 23, 104th Cong., 1st Sess. (1995) .................0000. 4

U.S. Census Bureau, 100 Largest U.S. Coun-

ties (July 1, 2007) <http://www.census.gov/

popest/counties/CO-EST2007-07. html > oo... ec eeeseeeeees 4

$n the Supreme Court of the Anited States

No.

SPRINT TELEPHONY PCS, L.P., PETITIONER

COUNTY OF SAN DIEGO, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Sprint Telephony PCS, L.P., respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in

this case.

OPINIONS BELOW

The opinion of the en bane court of appeals (App., 77-

fra, la-17a) is reported at 543 F.3d 571. The opinion of

the court of appeals panel (App., infra, 18a-53a), as

amended, is reported at 490 F.3d 700. The district

court’s order granting summary judgment to petitioner

and denying summary judgment to respondents in rele-

vant part (App., infra, 54a-89a) is reported at 377 F.

Supp. 2d 886.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

September 11, 2008. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 253 of the Communications Act of 1934 (as

added by the Telecommunications Act of 1996), 47 U.S.C.

253, and the San Diego County Ordinance Amending the

Zoning Ordinance Relating to Wireless Telecommunica-

tions Facilities (Wireless Ordinance), Ord. No. 9549

(2003) (codified at Zoning Ord. §§ 6980-6991), are repro-

duced in the appendix to this petition (App., ¢xfra, 92a-

115a).

STATEMENT

Petitioner brought suit against respondents in the

United States District Court for the Southern District of

California, claiming, enter ala, that the San Diego

County Wireless Ordinance was preempted by Section

253(a) of the Communications Act of 1934 (as added by

the Telecommunications Act of 1996). The district court

granted summary judgment to petitioner and denied

summary judgment to respondents on that claim. App.,

infra, \4a-89a. A panel of the court of appeals affirmed.

Id. at 18a-58a. After granting rehearing en banc, how-

ever, the court of appeals reversed, holding that the

Wireless Ordinance was not preempted. /d. at la-17a.

In doing so, the court of appeals expressly recognized

that its interpretation of Section 253(a) conflicted with

those of several other circuits. See 7d. at 9a-10a.

1. a. Congress enacted the Telecommunications Act

of 1996 to “promote competition and reduce regulation in

order to secure lower prices and higher quality services

for American telecommunications consumers and en-

courage the rapid deployment of new telecommunica-

tions technologies.” Telecommunications Act of 1996,

Pub. L. No. 104-104, Preamble, 110 Stat. 56. The Tele-

communications Act was intended to “end[{] the long-

standing regime of state-sanctioned monopolies” in the

provision of telephone service, AT&T Corp. v. lowa

Utilities Bd., 525 U.S. 366, 371 (1999), and to “accelerate

rapidly private sector deployment of advanced telecom-

munications [services] to all Americans by opening all

telecommunications markets to competition,” H.R. Conf.

Rep. No. 458, 104th Cong., 2d Sess. 113 (1996).

Although the wireless communications industry was

still in its relative infancy, Congress expressed particular

concern about the need to remove barriers to competi-

tion in that industry. Specifically, the House Commerce

Committee found that state and local zoning decisions

concerning the placement of wireless facilities were

“creat[ing] an inconsistent and, at times, conflicting

patchwork of requirements” that was threatening to “in-

hibit the deployment” of wireless services. H.R. Rep.

No. 204, 104th Cong., Ist Sess. 94 (1995).

In significant respects, the Telecommunications Act

shifted the locus of regulatory authority over the tele-

communications industry from the state and local level to

the federal level. One of the Telecommunication Act’s

“central” provisions in this regard was its preemption

provision, new Section 253 of the Communications Act of

1934, 47 U.S.C. 253. See Cablevision of Boston, Ine. v.

Public Improvement Comm’n, 184 F.3d 88, 97 (1st Cir.

1999); see also In re TCI Cablevision of Oakland

County, Inc., 12 F.C.C.R. 21,396, 21,440 (4 102) (1997)

(noting that Section 253 was a “critical component of

Congress’ pro-competitive deregulatory national policy

framework”). The subsection of that provision at issue

here, Section 253(a), provides that “[{nJo State or local

statute or regulation, or other State or local legal re-

quirement, may prohibit or have the effect of prohibiting

the ability of any entity to provide any interstate or in-

trastate telecommunications service.” 47 U.S.C. 253(a).

Section 253(a) was intended to “preempt[] almost all

State and local barriers to competing with the telephone

companies,” S. Rep. No. 23, 104th Cong., lst Sess. 5

(1995), and to ensure that federal telecommunications

policy “would indeed be the law of the land and could not

be frustrated by the isolated actions of individual mu-

nicipal authorities or states,” Jn re Public Utility

Comm’n, 13 F.C.C.R. 3460, 3463 (11 4) (1997), petition for

review denied, 164 F.3d 49 (D.C. Cir. 1999).

b. San Diego County, California, is the sixth largest

county in the United States, with a population of nearly 3

million. See U.S. Census Bureau, 100 Largest U.S.

Counties (July 1, 2007) <http://www.census.gov/popest/

counties/CO-EST2007-07.html>. On April 30, 2003, the

County’s Board of Supervisors adopted the Wireless Or-

dinance. The stated purpose of that ordinance was to

“provide a uniform and comprehensive set of standards

for the development, siting and installation of wireless

telecommunications facilities” in San Diego County.

Zoning Ord. § 6982.

The Wireless Ordinance establishes a host of sub-

stantive and procedural requirements for the placement

and design of wireless facilities, above and beyond the

generally applicable requirements contained in preexist-

ing provisions of the county’s zoning ordinance. As a

substantive matter, the Wireless Ordinance requires a

provider to show that a proposed wireless facility is

“necessary” to close a “gap” in the provider's service

network. Zoning Ord. § 6984(a). The proposed facility,

moreover, must be located in a “preferred zone” (e.g., in

certain listed areas) and at a “preferred location” within

that zone (e.g., on an existing structure or a commercial

or industrial building), unless the provider can show that

such a location would not be “technologically or legally

feasible.” Jd. § 6986(a)-(b). In addition, a proposed wire-

less facility must “be designed to minimize the visual im-

pact to the greatest extent feasible * * * and to be

compatible with existing architectural elements * * *

and other site characteristics,” id. § 6987(f); the facility

must be “the minimum height required from a techno-

logical standpoint for the proposed site,” td. § 6984(c)(1);

and the facility must meet a number of other highly de-

tailed design requirements (right down to the use of

“non-reflective” colors and “graffiti-resistant coat-

ing[s]”), 7d. § 6986(a)-(e), (g)-(r).

Where the proposed facility will be located in a resi-

dential area, any tower in the facility must be set back

from the nearest lot by a distance of at least 50 feet, Zon-

ing Ord. § 6985(c)(4), and certain types of towers may

not be used, 2d. § 6985(c)(1). No matter where the facil-

ity is located, moreover, the provider must agree to

share the facility with other providers, as long as it

would be feasible and “aesthetically desirable” to do so.

Id. § 6984(c)(9). And even if the proposed facility is in

compliance with applicable requirements established by

the Federal Communications Commission (FCC), the

County may deny permission if the facility would inter-

fere with its regional communications system. /d.

§ 6984(c)(11).

As a procedural matter, the Wireless Ordinance es-

tablishes four tiers of review for applications for wireless

facilities, depending on the type of the facility and its lo-

cation. Zoning Ord. $ 6985(a). Lower-tier applications

are subject to review by the Director of the Planning and

Land Use Department (with or without community in-

put); higher-tier applications require use permits and

may be reviewed directly by the Planning Commission.

Id. § 6985(a)-(b). Regardless of the tier to which an ap-

pication is assigned, however, a provider must comply

with detailed application requirements. For example,

the provider must submit a map showing “the gap [that]

the facility is meant to close”; a “visual impact analysis,”

including photo simulations, the proposed color scheme,

and a site map; and a detailed narrative with information

about, inter alia, the facility’s height, landscaping, main-

tenance, and noise levels. /d. § 6984(a)-(c). And the Di-

rector of the Planning and Land Use Department retains

the discretion, “based upon specific project factors,” to

require the provider to submit additional information.

Td. § 6984.

A provider seeking to build a wireless facility in San

Diego County must also satisfy the generally applicable

requirements contained in preexisting provisions of the

county’s zoning ordinance. Where a use permit is re-

quired—.e., for most “high-visibility” facilities or facili-

ties located in residential or rural areas—the provider

must submit still more information (such as an assess-

ment of the environmental impact of the facility), Zoning

Ord. § 7354(b), and the application must be considered at

a public hearing, id. § 7356. Critically, the County re-

tains the unfettered discretion to grant or deny the ap-

plication based on “[aJny * * * relevant impact of the

proposed use.” /d. § 7358(a)(6). If it grants the applica-

tion, the County may impose any conditions on the use

that are “reasonable and necessary or advisable under

the circumstances,” 7d. § 7362, and may revoke or modify

the permit at any time, zd. § 7382. A provider that fails

to comply with any provision of the zoning ordinance is

subject to criminal and civil penalties. /d. § 7703.

2. Petitioner is one of the Nation’s largest providers

of wireless telecommunications services (including mo-

-~]

bile telephone service). On July 15, 2003, petiticner,

filed suit against respondents, the County of San Diego

and the members of its Board of Supervisors, in the

United States District Court for the Southern District of

California.' Petitioner claimed, inter alia, that the San

Diego County Wireless Ordinance was preempted by 47

U.S.C. 263(a).”

After the parties cross-moved for summary judgment

on petitioner’s Section 253(a) claim, the district court

granted summary judgment to petitioner (and denied

summary judgment to respondents) on that claim. App.,

infra, 54a-89a. As is relevant here, the district court

held that the Wireless Ordinance was preempted by Sec-

tion 253(a). /d. at 65a-74a.

The district court reasoned that the relevant inquiry

under Section 253(a) was “whether the regulatory

scheme established by the [Wireless Ordinance] prohib-

its or has the effect of prohibiting [petitioner] from pro-

viding wireless telecommunications service.” App., 77-

fra, 65a. The district court noted that “[cJourts applying

' Another wireless provider, Pacific Bell Wireless (now a subsidi-

ary of AT&T), joined in the complaint and subsequently settled.

* Petiticner also claimed that the Wireless Ordinance discrimi-

nated against some providers using public rights-of-way, in violation

of 47 U.S.C. 253(c), and that plaintiffs were entitled to damages for

the alleged violations of Section 253 pursuant to 42 U.S.C. 1983. See

C.A. E.R. 11-12. The district court dismissed the Section 253(c)

claim on the ground that Section 253(c) “does not provide an inde-

pendent cause of action.” /d. at 23. Petitioner abandoned that claim

on appeal. As for the Section 1988 claim, the district court granted

summary judgment to respondents on that claim on the ground that

“section 253(a) does not give rise to a private right enforceable

through [Section] 1983,” App., infra, 8la, and the en bane court of

appeals agreed that “[Section] 1983 claims cannot be brought for

violations of [Section] 253,” id. at 16a. Petitioner does not challenge

that holding of the court of appeals in this petition.

section 253(a) have found that certain features of regula-

tions, in combination, have the effect of prohibiting the

provision of telecommunications services.” J/d. at 65a-

66a. Those features, the court continued, “include

* * * numerous submission or disclosure require-

ments, retention of discretion by the city to require fur-

ther disclosures, public hearing requirements, unlimited

discretion of the city to grant or deny permits, and civil

and/or criminal penalties.” /d. at 66a (citing cases). The

court then determined that, “{llike the ordinances and

regulations in the cases [cited], the [Wireless Ordinance]

includes a number of features that have the collective

effect of prohibiting the provision of telecommunications

service.” /d. at 70a. The court explained that the Wire-

less Ordinance “impose[s] burdensome submission re-

quirements”; “unreasonabl[y]” requires providers to be

willing to share their facilities, regardless of the terms;

and “allow[s] for the exercise of unfettered discretion at

every level of the application process.” /d. at 70a-71a.°

3. A panel of the court of appeals affirmed. App., 27-

fra, 18a-52a. With regard to whether the Wireless Ordi-

nance was preempted by Section 253(a), the panel stated

that this case raised “almost identical” concerns to those

* The district court also held that the Wireless Ordinance was not

saved by 47 U.S.C. 253(c), which preserves the authority of a state

or local government “to manage the public rights-of-way or to re-

quire fair and reasonable compensation from telecommunications

providers * * * for use of public rights-of-way on a non-discrimi-

natory basis.” App., infra, 74a-78a. The court reasoned that “Sec-

tion 253(c) clearly does not apply to the extent that the [Wireless

Ordinance] goes beyond regulating the public mghts-of-way,” id. at

75a, and that, even if the Wireless Ordinance could be interpreted to

apply only to public rights-of-way, “many of its requirements would

not qualify as management of the public rights-of-way,” 7d. at 76a

(internal quotation marks omitted). Respondents did not contend on

appeal that the Wireless Ordinance was saved by Section 253(c).

raised in City of Auburn v. Qwest Corp., 260 F.3d 1160

(9th Cir. 2001), cert. denied, 534 U.S. 1079 (2002), in

which the court had held that similar ordinances were

preempted. App., infra, 48a. The panel explained that

“(t]he [Wireless Ordinance], on its face, supplements the

Zoning Ordinance by adding submission requirements to

an already voluminous list.” Jbid. “Those require-

ments,” the panel continued, “are in addition to the open-

ended discretion and threat of criminal penalties con-

tained in the Zoning Ordinance.” /bid. The panel added

that “(t]he [Wireless Ordinance] itself explicitly allows

the decision maker to determine whether a facility is ap-

propriately ‘camouflaged,’ ‘consistent with community

character,’ and designed to have minimum ‘visual im-

pact.”” J/bed. (citations omitted). The panel therefore

concluded that “the [Wireless Ordinance] imposes a

permitting structure and design requirements that pre-

sent[] barriers to wireless teleecommunications within the

County, and is therefore preempted by § 253(a).” bred.

4. After granting rehearing en banc, the court of ap-

peals reversed, holding that the Wireless Ordinance was

not preempted. App., zrfra, la-17a.

As is relevant here, the en banc court of appeals first

noted that the panel in City of Auburn had “adopted [a]

broad interpretation of [the] preemptive effect” of Sec-

tion 253(a). App., infra, 8a. The court reasoned that, by

erroneously relying on the use of the word “may” in that

provision, the City of Auburn court had held that, “if a

local regulation merely ‘create[s] a substantial

barrier’ to the provision of services or ‘allows a city to

bar’ provision of services,’ then Section 253(a) preempts

the regulation.” Jd. at 8a-9a (quoting Coty of Auburn,

260 F.3d at 1176)).

The court of appeals then contended that “[City of

Auburn's] expansive reading of the preemptive effect of

§ 253(a) has had far-reaching consequences.” App., 7n-

fra, 9a. The court noted that “[t]hree of our sister cir-

cuits * * * have followed our broad interpretation of

§ 253(a), albeit with little discussion.” /bid. (citing Puer-

to Rico Telephone Co. v. Municipality of Guayanilla,

450 F.3d 9 (1st Cir. 2006); TCG New York, Inc. v. City of

White Plains, 305 F.3d 67 (2d Cir. 2002), cert. denied,

538 U.S. 923 (2003); and Qwest Corp. v. City of Santa Fe,

380 F.3d 1258 (10th Cir. 2004)). The court also noted

that, “{a]pplying our [City of] Auburn standard, federal

district courts have invalidated local regulations in tens

of cases across this nation’s towns and cities.” /bid. (cit-

ing cases).

On the other hand, the court of appeals explained, the

Eighth Circuit had “rejected the [City of] Auburn stan-

dard.” App., infra, 10a (citing Level 3 Communications,

L.L.C. v. City of St. Louis, 477 F.3d 528 (8th Cir. 2007),

petition for cert. pending, No. 08-626 (filed Nov. 7,

2008)). The court concluded that the Eighth Circuit’s

eritique of City of Auburn was “persuasive,” reasoning

that “Congress’ use of the word ‘may’ * * * convey\s|

the meaning that ‘state and local regulations shall not

prohibit or have the effect of prohibiting telecommunica-

tions services.” /bid. (emphasis added). The court also

asserted that a “narrow” interpretation of Section 253(a)

was “consistent with the FCC’s.” J/d. at lla (citing /n re

California Payphone Association, 12 F.C.C.R. 14,191

(1997)).

The court of appeals therefore overruled its earlier

decision in City of Auburn and agreed with the Eighth

Circuit that, in order to establish preemption, “a plaintiff

* * * must show actual or effective prohibition, rather

than the mere possibility of prohibition.” App., infra, at

10a-lla (internal quotation marks and citation omitted).

Ry contrast, under the court’s standard, “a plaintiffs

showing that a locality could potentially prohibit the

provision of teleeommunications services is insufficient.”

Id. at 18a. The court further noted that, because peti-

tioner’s claim constituted a “facial challenge to the

[Wireless] Ordinance,” it was subject to the rule of

United States v. Salerno, 481 U.S. 739 (1987), under

which a claimant must show that “no set of circum-

stances exists under which the [challenged statute]

would be valid.” App., infra, 13a-14a.

Turning to the application of its standard, the court

of appeals reasoned, with regard to the Wireless Ordi-

nance’s unfettered discretion, that “i]t is certainly true

that a zoning board could exercise its discretion to effec-

tively prohibit the provision of wireless services, but it is

equally true (and more likely) that a zoning board would

exercise its discretion only to balance the competing

goals of [the] ordinance.” App., zfra, 15a. Regarding

the Wireless Ordinance’s procedural requirements, the

court similarly reasoned that, ‘“[a]lthough a zoning board

could conceivably use these procedural requirements to

stall applications and thus effectively prohibit the provi-

sion of wireless services, the zoning board equally could

use these tools to evaluate fully and promptly the merits

of an application.” /bid. And regarding the Wireless

Ordinance’s substantive requirements, the court as-

serted that “[petitioner] has not identified a single re-

quirement that effectively prohibits it from providing

wireless services.” /d. at 15a-16a.

The court of appeals suggested that a facial challenge

could succeed if an ordinance “effect{ed] a significant gap

in service coverage”: for example, “[iJf an ordinance re-

quired * * * that all [wireless] facilities be under-

ground” or “caat no wireless facilities be located within

one mile of a road.” App., infra, 16a. Absent such a

showing, however, the court concluded that “the [Wire-

less] Ordinance does not effectively prohibit [petitioner]

from providing wireless services.” /bid.‘

REASONS FOR GRANTING THE PETITION

The en bane Ninth Circuit held in this case that a

state or local regulation that does not expressly prohibit

the provision of telecommunications service is_ pre-

empted by 47 U.S.C. 253(a) only if it effects a complete

ban on the provision of service. In so holding, the court

of appeals expressly recognized that its interpretation of

Section 253(a) conflicted with those of several other cir-

cuits. The court of appeals’ analysis was deeply flawed,

and the resulting rule promises to have substantial and

harmful consequences for the telecommunications indus-

try in general and the wireless industry in particular.

This case, moreover, is an excellent vehicle for resolution

of the circuit conflict concerning the interpretation of

Section 253(a). In short, this case satisfies all of the

Court’s traditional criteria for granting review.

A. The Decision Below Conflicts With The Decisions Of

Several Other Courts Of Appeals

In the decision below, the en bane Ninth Circuit held

that a state or loeal regulation that does not expressly

prohibit the provision of telecommunications service is

preempted by 47 U.S.C. 258(a) only if it effects a com-

plete ban on the provision of service. App., 7fra, 16a.

As the court expressly recognized, its “narrow” interpre-

tation of Section 253(a) conflicts with the interpretations

* Judge Gould concurred. App., infra, 17a. He reasoned that zon-

ing ordinances could be preempted if “they would substantially in-

terfere with the ability of the carrier to provide [telecommunica-

tions] services,” but concluded, without elaboration, that “the record

in this ease shows that the teleecommunications services here were

not effectively barred by the zoning ordinance.” /bid.

of several other circuits. See zd. at 9a, lla. That clear

and substantial circuit conflict warrants this Court’s re-

view.

1. Although they have used slightly different formu-

lations of the applicable standard, three circuits—the

First, Second, and Tenth—have held that a state or local

regulation is preempted by 47 U.S.C. 253(a) if it substan-

tially impedes an entity from providing teleeommunica-

tions service.

In Puerto Rico Telephone Co. v. Municipality of

Guayanilla, 450 F.3d 9 (2006), the First Circuit held

that, for purposes of determining whether a regulation

“ha[s] the effect of prohibiting the ability of any entity to

provide any * * * telecommunications service,” the

relevant inquiry is whether “the [regulation] materially

inhibits or limits the ability of any competitor or poten-

tial competitor to compete in a fair and balanced legal

and regulatory environment.” Jd. at 18 (citing, inter

alia, In re California Payphone Association, 12

F.C.C.R. 14,191, 14,206 (131) (1997)). The court added

that “a prohibition does not need to be complete or ‘in-

surmountable’ to run afoul of § 253(a).” Jbid. (citation

omitted). Applying that standard, the court invalidated a

local ordinance that imposed a 5% fee on gross revenues

from all telephone calls originating within the locality

(and required providers to comply with associated re-

porting requirements). /d. at 11-12, 23-24. The court

reasoned that the ordinance would “negatively affect

{the challenging provider’s] profitability”; give rise to “a

substantial increase in [the provider’s] costs”; and “place

a Significant burden” on the provider. /d. at 18, 19.

Similarly, in TCG New York, Inc. v. City of White

Plains, 305 F.3d 67 (2002), cert. denied, 538 U.S. 923

(2003), the Second Circuit held that the test under Sec-

tion 253(a) is whether a regulation “materially inhibits or

limits the ability of any competitor or potential competi-

tor to compete in a fair and balanced legal and regula-

tory environment.” /d. at 76 (quoting California Pay-

phone Association, 12 F.C.C.R. at 14,206 (931)). Like

the First Circuit, the Second Circuit noted that “a prohi-

bition does not need to be complete or ‘insurmountable’

to run afoul of § 253(a)).” Jbid. (citation omitted). The

court proceeded to invalidate a local ordinance that sub-

jected non-incumbent providers to a host of substantive

and procedural requirements (and pursuant to which the

locality sought to impose a 5% gross-revenues fee on the

challenging provider). /d. at 71-73, 82. Notably, in in-

validating the ordinance, the court focused on a provision

that gave the local council the unfettered discretion to

reject any application for a franchise. /d. at 76. The

court concluded that the ordinance was preempted be-

cause it would pose “obstacles * * * to [the challeng-

ing provider’s] ability to compete in [the locality] on a

fair basis.” /d. at 76-77.

For its part, in Qwest Corp. v. City of Santa Fe, 380

F.3d 1258 (2904), the Tenth Circuit held that the relevant

inquiry under Section 253(a) is whether a regulation

“would ‘materially inhibit’ the provision of [telecommuni-

cations] services.” /d. at 1271 (quoting Calzfornia Pay-

phone Association, 12 F.C.C.R. at 14,206 (131)). The

court also observed that “an absolute bar on the provi-

sion of services is not required.” J/bid. Applying that

standard, the court invalidated a local ordinance that re-

quired providers to register with the locality and obtain

lease agreements before using public rights-of-way. /d.

at 1262-1263, 1275. Like the Second Cireuit, the Tenth

Circuit focused on the fact that the ordinance contained a

provision giving the locality “broad discretion in deter-

mining whether or not to accept a registration or lease

application.” /d. at 1270. The court reasoned that the

provision would “den[y] telecommunications providers

the fair and balanced legal and regulatory environment

the [Telecommunications Act] was designed to create”

and that other provisions would “create a significant

burden” and impose “substantial costs” on the challeng-

ing provider. /d. at 1270, 1271 (internal quotation marks

and citation omitted).

2. The Eighth Circuit, by contrast, has expressly re-

pudiated the approaches of the First, Second, and Tenth

Circuits. In Level 3 Communications, L.L.C. v. City of

St. Louis, 477 F.3d 528 (2007), petition for cert. pending,

No. 08-626 (filed Nov. 7, 2008), the Eighth Circuit con-

tended that those circuits had “reachf{ed] a conclusion

contrary to a complete analysis of [Section 253(a)].” Jd.

at 533. The court reasoned that Section 253(a) could not

be read to “result|| in a preemption of regulations which

might, or may at some point in the future, actually or ef-

fectively prohibit services.” Jbid. The court therefore

concluded that it was insufficient for a provider challeng-

ing a regulation under Section 253(a) to show “the mere

possibility of prohibition.” /bid.

Confusingly, however, the Eighth Circuit—-like the

circuits whose approaches it purported to be rejecting—

recognized that Section 253(a) “articulates a reasonably

broad limitation on state and local governments’ author-

ity to regulate telecommunications providers,” Level 3

Communications, 477 #.3d at 531-532; that a challeng-

ing provider “need not show a complete or insurmount-

able prohibition,” 7d. at 533 (citing TCG New York, 305

F.3d at 76); and that the provider instead “must show an

existing material interference with the ability to compete

in a fair and balanced market,” ibid. (citing California

Payphone Association, 12 F.C.C.R. at 14,206 (1 31)).

Still more confusingly, the court at one point suggested

that the “material interference” standard was even more

exacting than the standard it was seemingly applying.

See id. at 534 (concluding that there was “insufficient

evidence from [the challenging provider] of any actual or

effective prohibition, let alone one that materially inhib-

its its operations”) (emphasis added). Although the

Eighth Circuit purported to apply (and apparently did

apply) a more stringent standard than the other circuits,

it is thus somewhat unclear just how stringent that stan-

dard is in practice.

3. Like the Eighth Circuit, the en bane Ninth Circuit

in this case expressly repudiated the approaches of the

First, Second, and Tenth Circuits, see App., znfra, Ya,

and noted that it was insufficient for a challenging pro-

vider to show “the mere possibility of prohibition,” id. at

10a-lla (quoting Level 3 Communications, 477 F.3d at

533). Unlike the Eighth Circuit, however, the Ninth Cir-

cuit did not suggest that a provider could satisfy Section

253(a) by showing that a regulation “material{ly] inter-

fere{d] with” the ability of any entity to provide tele-

communications service, or by identifying a prohibition

that was short of “complete or insurmountable.” Level 3

Communications, 477 F.3d at 533. Instead, the court

overruled its earlier decision in City of Auburn (which, it

noted, had recognized that a regulation could be pre-

empted if it “create[d] a substantial . . . barrier” to

the provision of telecommunications service, App., 77fra,

8a-9a (quoting City of Auburn, 260 F.3d at 1176)), and

held that a regulation is preempted by Section 253(a)

only if it effects a complete ban on the provision of such

service. /d. at 16a.°

» While the Ninth Circuit suggested that a plaintiff could succeed

in a challenge to a regulation if an ordinance “effect{ed] a significant

gap in service coverage,” App., infra, 16a, such a coverage gap

would be tantamount to a complete ban, insofar as the carrier would

be unable to provide any service in the area of the “gap” (and would

Regardless of how the Eighth Circuit’s interpretation

is characterized, therefore, it is clear that the Ninth Cir-

cuit’s interpretation at a minimum conflicts with the in-

terpretations of the First, Second, and Tenth Circuits.

Because the decision below was issued by the en banc

court, moreover, it is exceedingly unlikely that the Ninth

Circuit will reconsider its interpretation. The resulting

circuit conflict on the meaning of Section 253(a) merits

this Court’s review.

B. The Court Of Appeals’ Interpretation Of Section

253(a) Is Erroneous

The en bane Ninth Circuit erred, moreover, by hold-

ing that a state or local regulation that does not ex-

pressly prohibit the provision of telecommunications

service is preempted by Section 253(a) only if it effects a

complete ban on the provision of such service. See App.,

infra, 16a.

1. Section 253(a) provides that “[nlo State or local

statute or regulation, or other State or local legal re-

quirement, may prohibit or have the effect of prohibiting

the ability of any entity to provide any interstate or in-

trastate telecommunications service.” 47 U.S.C. 253(a).

As many courts have noted, the language of Section 253

in general—and Section 253(a) in particular—is far from

clear. See, e.g., New Jersey Payphone Ass'n v. Town of

West New York, 299 F.3d 235, 240 (3d Cir. 2002); City of

Abilene v. FCC, 164 F.3d 49, 52 (D.C. Cir. 1999). As this

Court has already (if implicitly) recognized, however, the

text of Section 253(a) comfortably accommodates an in

terpretation under which any regulation that substan-

be unable to provide adequate service to the surrounding area). The

Ninth Circuit did not identify any other circumstance in which a

challenge to a reyulation that stopped short of a complete ban would

succeed under its standard.

tially impedes an entity from providing telecommunica-

tions service is preempted. See, e.g., Verizon Communt-

cations, Inc. v. FCC, 585 U.S. 467, 491 (2002) (noting that

Section 253(a) “prohibits state and local regulation that

~mpedes the provision of ‘telecommunications service’”)

(emphasis added).

Such an interpretation of Section 253(a) is preferable

to the Ninth Circuit’s cramped interpretation for two

principal reasons. First, that interpretation, unlike the

Ninth Circuit’s interpretation, gives meaningful content

to the second clause of Section 253(a), which preempts

regulations that have the “effect of prohibiting” the abil-

ity to provide telecommunications service (in contrast

with the first clause, which preempts regulations that

“prohibit” the ability to do so). Cf. Nixon v. Missouri

Municipal League, 541 U.S. 125, 138 (2004) (rejecting a

reading of Section 253(a) under which the provision

‘would often accomplish nothing”). Second, that inter-

pretation better effectuates Congress's underlying policy

objectives in enacting the Telecommunications Act in

general (and Section 253(a) in particular): namely, to

eliminate barriers to competition and to ensure that tele-

communications providers would not be subject to intru-

sive state and local regulation. See pp. 2-4, supra; cf.

Nixon, 541 U.S. at 138 (rejecting an interpretation under

which Section 253(a) “would hold out no promise of a na-

tional consistency”).

2. In adopting its avowedly “narrow” construction of

Section 253(a), see App., infra, lla, the Ninth Circuit

committed several fundamental errors of statutory in-

terpretation.

a. The Ninth Circuit criticized those decisions that

had adopted a broader construction of Section 253(a) (in-

cluding its prior decision in City of Auburn) on the

ground that they attached excessive significance to the

provision’s use of the word “may.” See App., infra, 8a-

lla. In so reasoning, however, the Ninth Circuit was at-

tacking a strawman. Neither the City of Auburn nor the

decisions of other circuits placed substantial weight on

the use of the word “may”; instead, those decisions

merely sought to give meaning to the successive phrase

“have the effect of prohibiting.” See City of Auburn, 260

F.3d at 1176 (holding that “[t]he ordinances at issue in

the present case include several features that, in combi-

nation, have the effect of prohibiting the provision of

telecommunications services’); see also Puerto Rico

Telephone, 450 F.3d at 18; City of Santa Fe, 380 F.3d at

1271; TCG New York, 305 F.3d at 76.

Although the Ninth Circuit confidently asserted that

the text of Section 253(a) is “unambiguous,” see App.,

infra, lla, it made no effort to explain why the “have the

effect of prohibiting” clause of Section 253(a) should be

limited to regulations that effect a complete ban, rather

than regulations that erect “substantial . . ._ bar.

rier[s]” to the provision of telecommunications service.

Id. at 8a-9a (quoting City of Auburn, 260 F.3d at 1176).

Instead, the court merely stated (and repeatedly re-

stated) the unobjectionable proposition that Section

253(a) preempts regulations that either “actually pro-

hibit or effectively prohibit” the ability to provide such

service. See, e.g., 7d. at lla (citation omitted).

b. The Ninth Circuit also erred by suggesting that

its construction of Section 253(a) was “consistent with

the FCC’s.” App., ifra, lla. In so doing, the court cited

an FCC ruling for the generic proposition that Section

253(a) preempts regulations that either “actually pro-

hibit or effectively prohibit” the ability to provide tele-

communications service. /bid. (citing California Pay-

phone Association, 12 F.C.C.R. at 14,209 (41 38)).

In the same ruling on which the Ninth Circuit relied,

however, the FCC made clear that, in determining

whether a regulation “‘has the effect of prohibiting’ the

ability of any entity to provide [telecommunications] ser-

vice,” it would “consider whether the [regulation] mate-

rially inhibits or limits the ability of any competitor or

potential competitor to compete in a fair and balanced

legal and regulatory environmeni.” California Pay-

phone Association, 12 F.C.C.R. at 14,206 (131).° While

the Ninth Circuit suggested that the FCC’s interpreta-

tion of Section 253(a) would be entitled to deference un-

der Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), see App., infra, 11a, it

seemingly made no effort to come to terms with the

FCC’s actual interpretation of the operative statutory

language.

e. The Ninth Circuit compounded its other interpre-

tive errors by erroneously relying on the standard for

facial challenges articulated in United States v. Salerno,

481 U.S. 739 (1987), in order to narrow still further the

* All of the other courts of appeals to have addressed the con-

struction of Section 253(a) have discussed (and, to varying degrees,

relied upon) the quoted language from the FCC's ruling in Califor-

nia Payphone Association. See Level 3 Communications, 477 F.3d

at 533; Puerto Rico Telephone, 450 F.3d at 18; City of Santa Fe, 380

F.3d at 1271; TCG New York, 305 F.3d at 76. The FCC, moreover,

has repeatedly cited (and relied upon) that language in subsequent

rulings. See /n re Public Utility Comm'n, 13 F.C.C.R. 3460, 3470

(1 22) (1997), petition for review denied, 164 F.3d 49 (D.C. Cir. 1999);

In re Low Tech Designs, Inc., 18 F.C.C.R. 1755, 1775-1776 (1 38)

(1997); In re Pittencrieff Communications, Inc., 13 F.C.C.R. 1735,

1751-1752 (32) (1997), petition for review denied, 168 F.8d 1332

(D.C. Cir. 1999); TCT Cahbleasion, 12 F.C.C.R. at 21,439 (1 98); see

also Im re Cheyenne River Sioux Tribe Telephone Auth., 17

F.C.C.R. 16,916, 16,936-16,937 (2002) (statement of Commissioner

Copps).

standard for preemption under Section 253(a) in the con-

text of a challenge to an ordinance. In Salerno, this

Court held that a plaintiff bringing a facial challenge to a

statute must show that the statute is invalid in all of its

applications. See 2d. at 745. Section 253(a), however, ex-

pressly preempts any “statute,” “regulation,” or other

“legal requirement” that prohibits or has the effect of

prohibiting the ability of any entity to provide telecom-

munications scrvices. By its terms, therefore, Section

253(a) provides the entire substantive standard for a pre-

emption challenge to a statute or regulation (such as the

San Diego County Wireless Ordinance), without any

need to import Salerno into the analysis. The Ninth Cir-

cuit thus erred by relying on Salerno to reach the con-

clusion that the Wireless Ordinance could not be pre-

empted unless it effectively resulted in a complete ban

on the provision of telecommunications service. See, €.g.,

App., 7zfra, 16a. This Court should grant review in or-

der to eliminate the resulting circuit conflict and correct

the Ninth Circuit’s seriously flawed interpretation.

C. The Question Presented Is An Important One That Is

Ripe For This Court’s Review

The question presented in this case—z.e., whether

Section 253(a) preempts a state or local regulation that

substantially impedes the provision of telecommunica-

tions service—is a recurring one of obvious importance

to the telecommunications industry. As noted above,

Section 253(a) is widely recognized as one of the most

significant provisions of the Telecommunications Act of

1996. See p. 3, supra. The interpretation of Section

253(a) has a direct effect on the ability of teleeommunica-

tions providers to offer more, and more advanced, tele-

communications services, consistent with the overriding

purpose of the Telecommunications Act. Indeed, the

willingness of telecommunications providers to make in-

vestments in new technologies in the first place depends

crucially on their ability to implement those technologies

free of interference from state and local law. At a mini-

mum, therefore, the question presented here is compa-

rable in importance to questions this Court has previ-

ously considered concerning the interpretation of this or

other provisions of the Telecommunications Act. Cf.,

e.g., City of Rancho Palos Verdes v. Abrams, 544 U.S.

113 (2005) (whether an individual may enforce the limita-

tions in 47 U.S.C. 332(e)(7) through an action under 42

U.S.C. 1983); Nixon, 541 U.S. at 125 (whether the phrase

“any entity” in Section 253(a) includes political subdivi-

sions of States).

Because state and local governments have continu-

ally sought to impose restrictions on the operations of

teleeommunications companies, moreover, questions con-

cerning the scope of preemption under Section 253(a)

arise with remarkable frequency. As the en bane Ninth

Circuit recognized in the decision below, lower courts

have considered challenges to local regulations under

Section 253(a) “in tens of cases across this nation’s towns

and cities,” App., infra, 9a (citing cases), and numerous

other cases are currently pending nationwide, see, e.g.,

Newpath Networks LLC v. City of Irvine, Nos. 08-55755

& 08-56010 (9th Cir. appeal filed May 2, 2008) (challenge

to local wireless ordinance); NextG Networks of Calvfor-

nea, Inc. v. City of Huntington Beach, No. 8:07-cev-01471

(C.D. Cal. filed Dee. 27, 2007) (same); New York SMSA

Limited Partnership v. Town of Clarkstown, No. 7:07-

ev-07637-CS (S.D.N.Y. filed Aug. 28, 2007) (same). Es-

pecially in light of the ongoing proliferation of litigation,

this Court’s intervention is warranted in order to provide

definitive resolution concerning the interpretation of

Section 253(a).

This Court’s intervention is especially warranted be-

cause the current inconsistency in the interpretation of

Section 253(a) among the circuits itself disserves one of

the primary objectives of the Telecommunications Act:

namely, to avoid subjecting telecommunications provid-

ers in general (and wireless providers in particular) to

“an inconsistent and, at times, conflicting patchwork of

requirements,” depending on where the providers’ facili-

ties are located. H.R. Rep. No. 204, 104th Cong., Ist

Sess. 94 (1995). As matters currently stand, in the Ninth

Circuit, virtually any regulation that does not expressly

prohibit the provision of telecommunications service

(with the exception of an entirely fanciful regulation pro-

viding that “all [wireless] facilities be underground” or

that “no wireless facilities be located within one mile of a

road,” App., 7xfra, 16a) will be upheld as not preempted

by Section 253(a). By contrast, in the First, Second, and

Tenth Circuits (and possibly even in the Fighth Circuit),

a regulation that substantially impedes the provision of

telecommunications service will be invalidated, even if it

does not result in a complete ban. The resulting disuni-

formity necessitates immediate intervention without fur-

ther percolation.

Finally, if the decision below is allowed to stand, it

threatens to embolden localities in the Nation’s largest

and most populous circuit—and, indeed, beyond—to en-

act burdensome ordinances similar to the County of San

Diego’s. In fact, in the short time since the decision be-

low, the City of Berkeley, California, has already with-

drawn proposed changes to its preexisting wireless ordi-

nance that would have eliminated some of its most oner-

ous requirements—changes that, ironically enough, were

initially proposed in response to the panel’s opinion. See

Memorandum from Wendy Cosin, Deputy Planning Di-

rector, to Members of the Berkeley Planning Commis-

sion, at 1-3 (Nov. 5, 2008) <http://www.tinyurl.com/

berkeleymemo>. As noted above, moreover, litigation

concerning other ordinances is currently ongoing in

courts in the Ninth Circuit—and the decision below will

obviously make it more difficult for the challenges to

those ordinances to succeed. See p. 22, supra. In light of

the clear and substantial circuit conflict concerning the

scope of Section 253(a) and the vital i~iportance of the

question presented, further review is p!.. nly warranted.

D. This Case Is An Ideal Vehicle For Considering The

Question Presented

Should the Court decide to resolve the circuit conflict

concerning the interpretation of Section 253(a), this case

is an optimal vehicle for the Court’s review.

1. This case cleanly presents the question whether

Section 253(a) preempts a state or local regulation that

substantially impedes the provision of telecommunica-

tions service, and it is clear that the resolution of that

question would be outcome-dispositive here. As the dis-

trict court and the ccurt of appeals panel correctly de-

termined, the San Diego County Wireless Ordinance

contains numerous features that, when viewed either col-

lectively or in isolation, erect substantial obstacles to the

provision of wireless service. See App., infra, 47a-48a

(court of appeals panel); zd. at 70a-74a (district court).

Most notably, the Wireless Ordinance imposes a host

of substantive and precedural requirements for the

placement and design of wireless facilities, ranging from

the requirement that a provider agree to share the pro-

posed facility with other providers, Zoning Ord.

§ 6984(c)(9), to the requirement that the provider supply

a “visual impa.c analysis” and a detailed narrative with

information about the facility’s design and maintenance,

id. § 6984(b)-(c). Lower courts applying a substantial-

impediment standard have routinely invalidated such

elaborate requirements under Section 253(a). See, e.g.,

Qwest Communications, Inc. v. City of Berkeley, 433

F.3d 1253, 1257 (9th Cir. 2006); City of Santa Fe, 380

F.3d at 1270; City of Auburn, 260 F.3d at 1175-1176.

The burden imposed by those substantive and proce-

dural requirements is compounded by the fact that the

County retains the discretion to grant or deny any appli-

cation requiring a use permit based on “[a]Jny * * *

relevant impact of the proposed use,” Zoning Ord.

§ 7358(a)(6), and to revoke or modify the permit at any

time, id. § 7382. As courts have noted in invalidating

similar provisions, such unfettered discretion constitutes

the “ultimate cudgel” that a locality may use to deny the

provision of wireless service. City of Auburn, 260 F.3d

at 1176; see, e.g., City of Santa Fe, 380 F.3d at 1270. Be-

cause the Wireless Ordinance constitutes nothing less

than a shadow regulatory regime for the provision of

wireless services within San Diego County, there can be

no doubt that it substantially impedes the provision of

telecommunications service within the county. Under

the correct ‘nterpretation of Section 253(a), therefore,

the Wireless Ordinance would comfortably be held to be

preempted.

Before the court of appeals, respondents contended

that petitioner’s preemption claim was governed not by

Section 253(a), but rather by 47 U.S.C. 332(c)(7), which

provides, in the specifie context of “decisions” concerning

the placement of wireless facilities, that a state or local

regulation “shall not prohibit or save the effect of pro-

hibiting the provision of personal wireless services.”

App., ¢nfra, 7a. To the extent respondents renew that

contention before this Court, however, it would not give

rise to any sort of vehicle problem. As a preliminary

matter, that contention plainly lacks merit.’. But more

broadly, as the en banc court of appeals noted, the “rele-

vant” language in each provision—7.e., that a state or lo-

cal regulation that either prohibits or effectively prohib-

its the provision of services is preempted—is “identical.”

See id. at 13a. Because “the legal standard is the same

under either [provision],” the en bane court of appeals

ultimately (and correctly) held that it was unnecessary to

address respondents’ contention. /bid. For the same

reason, this Court would not need to address that con-

tention either, and there is therefore no obstacle to the

Court’s reaching, and resolving, the question presented

here.

2. The question presented in this case is also pre-

sented in another petition curreritly pending before the

Court. See Level 3 Communications, L.L.C. v. City of

St. Louis, No. 08-626 (filed Nov. 7, 2008). That case in-

volves a challenge by a non-incumbent landline provider

to a particular licensing agreement with a local govern-

ment, pursuant to which the provider agreed to pay cer-

tain fees, and to submit to certain regulatory require-

ments, as a condition of obtaining access to publie rights-

of-way. See Level 3 Communications, 477 F.3d at 530-

531 (08-626 Pet. App. 24a-25a). At a minimum, the Court

should grant review in this case, because it is an ideal

‘ That is because Section 253(a) applies to challenges to “statutes”

and “regulations” (such as the San Diego County Wireless Ordi-

nance), whereas Section 332(c)(7) applies only to challenges to par-

ticular “decisions” made by local authorities. As the court of appeals

panel explained, therefore, respondents’ contention “ignores the

plain meaning and structure of the [Telecommunications Act].”

App., infra, 40a. Tellingly, respondents have cited no decision hold-

ing that a provider may bring a preemption claim like petitioner's

only under Section 332(¢)(7) and not under Section 253(a).

vehicle for resolving the circuit conflict concerning the

interpretation of Section 253(a). Because Level 3 Com-

munications arises in a distinct but complementary fac-

tual context, the Court may wish to grant review in that

case as well (and to consolidate the cases for briefing and

oral argument).

Level 3 Communications, however, presents one ad-

ditional complication that this case does not. Because

the provider in Level 3 Communications was specifically

seeking access to public rights-of-way, that case impli-

cates the meaning not only of Section 253(a), but also of

Section 253(c), which preserves the authority of state

and local governments to “manage the public rights-of-

way or to require fair and reasonable compensation from

telecommunications providers[] on a competitively neu-

tral and nondiscriminatory basis.” 47 U.S.C. 253(c).

In its petition before this Court, the provider in Level

3 Communications asks the Court not only to resolve

the circuit conflict concerning the interpretation of Sec-

tion 253(a), but also an additional (and less substantial)

circuit conflict on the issue whether a regulation may be

preempted under Section 253(c) regardless whether it

falls within the scope of Section 253(a). See 08-626 Pet.

23, 29-30." And the provider appears to go further and to

encourage the Court to address fact-intensive issues

concerning whether the requirements in that case were

“saved” by Section 253(c), regardless whether Section

* The provider in Level 3 Communications does not appear to

have contended before the Eighth Circuit that Section 253(c) pro-

vided a discrete basis for preemption. To the contrary, in its brief

on appeal, the provider asserted that the Sixth Circuit’s decision in

TCG Detrort v. City of Dearborn, 206 F.3d 618 (2000)—the sole

court of appeals decision to adopt such a rule—was “largely devoid

of any analysis.” Br. of Appellee at 39, Level 3 Communications,

supra (Nas. 06-1398 & 06-1459).

2538(c) merely creates an exception to preemption under

Section 253(a) or provides a discrete basis for preemp-

tion. Specifically, the provider seemingly asks the Court

to consider (and decide) whether the challenged fees

constitute “fair and reasonable compensation,” and

whether the challenged regulatory requirements consti-

tute “manage[ment] [of] the public rights-of-way * * *

on a competitively neutral and nondiseriminatory basis.”

See id. at 21-23.° This case, by contrast, presents only

the pure legal issue concerning the interpretation of Sec-

tion 253(a), shorn of any potentially complicating legal or

factual issues concerning the interpretation or applica-

tion of Section 253(c)."°

Regardless whether the Court grants the netition in

Level 3 Communications, however, it should grant the

instant petition. This case particularly merits review be-

cause it arises in perhaps the most important context in

which Section 253(a) currently applies: namely, the pre-

emption of local regulations targeted at the wireless

communications industry. Although the wireless indus-

try constituted only a fraction of the overall teleeommu-

nications industry at the time the Telecommunications

* The district court in Level 3 Communications held that some of

the challenged requirements, but not others, were saved by Section

253(c). See 405 F. Supp. 2d 1047, 1056-1063 (E.D. Mo. 2005) (08-626

Pet. App. 49a-67a). The court of appeals did not reach any issue

concerning the application of Section 253(c), in light of its holding

that the provider had failed to establish preemption under Section

253(a). See 477 F.3d at 534 & n.2 (08-626 Pet. App. 33a & n.2).

'° Although petitioner in this case claimed in its complaint that the

San Diego County Wireless Ordinance discriminated against some

providers using public rights-of-way, in violation of Section 253(c),

petitioner abandoned that claim on appeal, and respondents did not

contend on appeal that the Wireless Ordinance was saved by Section

253(c). See pp. 7n.2 & 8 n.3, supra.

Act of 1996 was enacted, there are now more than 241

million mobile telephone users in the United States, and

nearly the entire population lives in areas in which mo-

bile telephone service is provided. See FCC, Twelfth

Annual Report on the State of Competitive Market Con-

ditions With Respect to the Wireless Industry, Report

No. 08-28, at 5, 6 (2008) <http://hraunfoss.fece.gov/edocs _

public/attachmatch/F CC-08-28A1.pdf>.

The demand for wireless services continues to grow,

and, in order to satisfy that demand (and to provide ac-

cess to new technologies), wireless providers are under

continual pressure to expand and improve their net-

works. At the same time, however, local communities

are often resistant, even openly hostile, to the construc-

tion or modification of wireless facilities. See Steven J.

Eagle, Wireless Telecommunications, Infrastructure

Security, and the NIMBY Problem, 54 Cath. U. L. Rev.

445, 454 (2005) (noting that, “[w]hile the majority of adult

Americans now enjoy the benefits of wireless communi-

cations,” those benefits are “vulnerable to more paro-

chial concerns” and local governments “are in a practical

position to block or hinder the national teleeommunica-

tions network”); see also, e.g., Maleolm J. Tuesley, Note,

Not in My Backyard: The Siting of Wireless Communi-

cations Facilities, 51 Fed. Comm. L.J. 887 (1999).

As a practical matter, the Court’s decision in this case

will determine how far local governments can go in im-

posing restrictions on the placement and design of wire-

less facilities. If the Ninth Circuit’s decision is allowed to

stand, one of the central promises of the Telecommunica-

tions Act—that wireless providers can offer services free

of intrusive and inconsistent state and local regulation—-

will go unfulfilled. The question presented in this case is

of obvious and enormous practical and legal significance.

This ease therefore warrants the Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

DANIEL T. PASCUCCI KANNON K. SHANMUGAM

NATHAN R. HAMLER THOMAS J. ROBERTS

MINTZ, LEVIN, COHN, FERRIS, SARAH F. TEICH

GLOVSKY AND POPEO, P.C. WILLIAMS & CONNOLLY LLP

3580 Carmel Mountain 725 Twelfth Street, N.W.

Road, Suite 300 Washington, DC 20005

San Diego, CA 92130 (202) 434-5000

(858) 314-1500

DECEMBER 2008

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 05-56075, 05-56435

SPRINT TELEPHONY PCS, L.P., A DELAWARE LIM-

ITED PARTNERSHIP, PLAINTIFF-APPELLANT/

CROSS-APPELLEF, AND PACIFIC BELL WIRE-

LESS LLC, A NEVADA LIMITED LIABILITY COMPANY,

DBA CINGULAR WIRELESS, PLAINTIFF,

Vv.

COUNTY OF SAN DIEGO, A DIVISION OF THE STATE OF

CALIFORNIA; GREG COX, IN HIS CAPACITY AS A SUPER-

VISOR OF THE COUNTY OF SAN DIEGO; DIANNE JACOB,

IN HER CAPACITY AS A SUPERVISOR OF THE COUNTY OF

SAN DitGOo; PAM SLATER, IN HER CAPACITY AS A SU-

PERVISOR OF THE COUNTY OF SAN DIEGO; RON ROB-

ERTS, IN HIS CAPACITY AS A SUPERVISOR OF THE

COUNTY OF SAN DIEGO; BILL HORN, IN HIS CAPACITY

AS A SUPERVISOR OF THE COUNTY OF SAN DIEGO, DE-

FENDANTS-APPELLEES/CROSS-APPELLANTS.

Filed: Sept. 11, 2008

Before: ALEX KOZINSKI, Chief Judge, and AN-

DREW J. KLEINFELD, HAWKINS, A. WALLACE

TASHIMA, SIDNEY R. THOMAS, BARRY G.

(la)

SILVERMAN, SUSAN P. GRABER, RONALD M.

GOULD, MARSHA 8S. BERZON, RICHARD C.

TALLMAN, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge GRABER; Concurrence by Judge

GOULD.

GRABER, Circuit Judge.

The Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56 (codified as amended in U.S.C. Ti-

tles 15, 18 & 47) (“the Act”), precludes state and local

governments from enacting ordinances that prohibit or

have the effect of prohibiting the provision of telecom-

munications services, including wireless services. In

2003, Defendant County of San Diego enacted its Wire-

less Telecommunications Facilities ordinance. San Diego

County Ordinance No. 9549, § 1 (codified as San Diego

County Zoning Ord. §§ 6980-6991, 7352 (“the Ordi-

nance’)). The Ordinance imposes restrictions and per-

mit requirements on the construction and location of

wireless telecommunications facilities. Plaintiff Sprint

Telephony PCS alleges that, on its face, the Ordinance

prohibits or has the effect of prohibiting the provision of

wireless telecommunications services, in violation of the

Act. The district court permanently enjoined the County

from enforcing the Ordinance, and a three-judge panel of

this court affirmed. Sprint Telephony PCS, L.P. v.

County of San Diego, 490 F.3d 700 (9th Cir. 2007). We

granted rehearing en bane, 527 F.3d 791 (9th Cir. 2008),

and we now reverse.

FACTUAL AND PROCEDURAL HISTORY

The County of San Diego enacted the Ordinance “to

establish comprehensive guidelines for the placement,

design and processing of wireless telecommunications

facilities in all zones within the County of San Diego.”

San Diego County Ordinance No. 9549, § 1. The Ordi-

nance categorizes applications for wireless telecommuni-

cations facilities into four tiers, depending primarily on

the visibility and location of the proposed facility. San

Diego County Zoning Ordinance § 6985. For example,

an application for a low-visibility structure in an indus-

trial zone generally must meet lesser requirements than

an application for a large tower in a residential zone. /d.

Regardless of tier, the Ordinance imposes substan-

tive and procedural requirements on applications for

wireless facilities. For example, non-camouflaged poles

are prohibited in residential and rural zones; certain

height and setback restrictions apply in residential

zones; and no more than three facilities are allowed on

any site, unless “a finding is made that co-location of

more facilities is consistent with community character.”

Id. An applicant is required to identify the proposed fa-

cility’s geographic service area, to submit a “visual im-

pact analysis,” and to describe various technical attrib-

utes such as height, maintenance requirements, and

acoustical information, although some exceptions apply.

Id. § 6984. The proposed facility must be located within

specified “preferred zones” or “preferred locations,”

unless those locations are “not technologically or legally

feasible” or “a finding is made that the proposed site is

preferable due to aesthetic and community character

compatibility.” Jd. § 6986. The proposed facility also

must meet many design requirements, primarily related

to aesthetics. /d. § 6987. The applicant also must per-

form regular maintenance of the facility, including graf-

fiti removal and proper landscaping. Jd. § 6988.

General zoning requirements also apply. For exam-

ple, hearings are conducted before a permit is granted,

id. § 7356, and on appeal, if requested, id. § 7366(h).

Before a permit is granted, the zoning board must find:

That the location, size, design, and oper-

ating characteristics of the proposed use will

be compatible with adjacent uses, residents,

buildings, or structures, with consideration

given to:

1. Harmony in scale, bulk, coverage and den-

sity;

2. The availability of public facilities, services

and utilities;

3. The harmful effect, if any, upon desirable

neighborhood character;

4. The generation of traffic and the capacity

and physical character of surrounding

streets;

5. The suitability of the site for the type and

intensity of use or development which is pro-

posed; and to

6. Any other relevant impact of the proposed

use[. |

Id. § 7358(a). The decision-maker retains discretionary

authority to deny a use permit application or to grant the

application conditionally. /d. § 7362.

Soon after the County enacted the Ordinance, Sprint

brought this action, alleging that the Ordinance violates

47 U.S.C. § 253(a)' because, on its face, it prohibits or has

' In its complaint, Sprint also alleged that the Ordinance violated

another subsection of 47 U.S.C. § 253. The district court dismissed

that cause of action for failure to prosecute, and Sprint does not

challenge that dismissal on appeal.

the effect of prohibiting Sprint’s ability to provide wire-

less teleeommunications services. Sprint sought injunc-

tive and declaratory relief under the Supremacy Clause

and 28 U.S.C. § 13831, and damages and attorney fees

under 42 U.S.C. § 1983. The County argued that § 253(a)

did not apply to the Ordinance, because 47 U.S.C.

§ 332(c)(7) exclusively governs wireless regulations, and

that, in any event, the Ordinance is not an effective pro-

hibition on the provision of wireless services. The

County also argued that damages and attorney fees are

unavailable because Congress did not create a private

right of action enforceable under 42 U.S.C. § 1983.

The district court first held that facial challenges to a

local government’s wireless regulations could be brought

under either § 253(a) or § 332(c)(7), because neither is

exclusive. The district court next held, relying on our

decision in City of Auburn v. Qwest Corp., 260 F.3d 1160

(9th Cir. 2001), that the Ordinance violated § 253(a). The

district court therefore permanently enjoined the

County from enforcing the Ordinance against Sprint.

Finally, the district court held that a claim under 42

U.S.C. § 1983 for a violation of § 253(a) was not cogniza-

ble and granted summary judgment to the County on

that claim. The parties cross-appealed. A three-judge

panel of this court affirmed, and we granted rehearing

en banc.

STANDARDS OF REVIEW

We review for abuse of discretion the district court’s

grant of a permanent injunction, but review its underly-

ing determinations “by the standard that applies to that

determination.” Ting v. AT&T, 319 F.3d 1126, 1134-35

(9th Cir. 2003).

DISCUSSION

Sprint argues that, on its face, the Ordinance prohib-

its or has the effect of prohibiting the provision of wire-

less telecommunications services, in violation of the Act.

As a threshold issue, the parties dispute which provision

of the Act—47 U.S.C. § 253(a) or 47 U.S.C. § 332(¢)(7)(B)

(i)(11)—applies to this case.

A. The Effective Prohibition Clauses of 47 U.S.C.

§ 253(a) and 47 U.S.C. § 882(() (7) (B)VUdD

When Congress passed the Act, it expressed its in-

tent “to promote competition and reduce regulation in

order to secure lower prices and higher quality services

for American telecommuniecations consumers and en-

courage the rapid deployment of new telecommunica-

tions technologies.” 110 Stat. at 56; see also Ting, 319

F.3d at 1143 (“(T]he purpose of the ... Act is to ‘provide

for a pro-competitive, deregulatory national policy

framework ... by opening all teleeommunications mar-

kets to competition.’ ” (quoting H.R. Rep. No. 104-458, at

113 (1996) (Conf. Rejs.), reprinted in 1996 U.S.C.C.A.N.

124, 124)). The Act “represents a dramatic shift in the

nature of telecommunications regulation.” Cablevision

of Boston, Inc. v. Pub. Improvement Comm'n, 184 F.3d

88, 97 (1st Cir. 1999); see also Ting, 319 F.3d at 1143

(characterizing the Act as a “dramatic break with the

past”). Congress chose to “end[ | the States’ longstand-

ing 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, dissent-

ing in part).

Congress did so by enacting 47 U.S.C. § 253, a new

statutory section that preempts state and local regula-

tions that maintain the monopoly status of a telecommu-

nications service provider. See Cablevision of Boston,

184 F.3d at 98 (“Congress apparently feared that some

states and municipalities might prefer to maintain the

monopoly status of certain providers ... Section 253(a)

takes that choice away from them....”). Section 253(a)

states: “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 pro-

vide any interstate or intrastate telecommunications ser-

vice.

The Act also contained new provisions applicable only

to wireless telecommunications service providers. The

House originally proposed legislation requiring the Fed-

eral Communications Commission (“FCC”) to regulate

directly the placement of wireless telecommunications

facilities. See H.R. Rep. No. 104-204(1), $ 107, at 94

(1995), reprinted in 1996 U.S.C.C.A.N. 10, 61. But the

House and Senate conferees decided instead to “pre-

serve[ ] the authority of State and local gevernments

over zoning and land use matters except in the limited

circumstances set forth in the conference agreement.”

H.R. Rep. No. 104-458, § 704, at 207-08 (1996) (Conf.

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

Accordingly, at the same time, Congress also enacted

AT U.S.C. § 332(c)(7). Section 332(c)(7)(A) preserves the

authority of local governments over zoning decisions re-

garding the placement and construction of wireless ser-

vice facilities, subject to enumerated limitations in

§ 332(¢)(7)(B). One such limitation is that local regula-

tions “shall not prohibit or have the effect of prohibiting

the provision of personal wireless services.” Jd. § 332(c)

(7)(B)Q)(ID).

We have interpreted § 332(c)(7)(B)\@UI in accor-

dance with its text. In MetroPCS, Inc. v. City of San

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

that a locality runs afoul of that provision if (1) it imposes

a “city-wide general ban on wireless services” or (2) it

actually imposes restrictions that amount to an effective

prohibition.

Our interpretation of § 253(a), however, has not hewn

as closely to its nearly identical text. Again, § 253(a)

states: “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 pro-

vide any interstate or intrastate telecommunications ser-

vice.” In Auburn, we became one of the first federal cir-

cuit courts to interpret that provision. We surveyed dis-

trict court decisions and adopted their broad interpreta-

tion of its preemptive effect. Auburn, 260 F.3d at 1175-

76. In the course of doing so, we quoted § 253(a) some-

what inaccurately, inserting an ellipsis in the text of

§ 253(a). 7d. at 1175. We held that “{sJection 253(a) pre-

empts ‘regulations that not only “prohibit” outright the

ability of any entity to provide telecommunications ser-

vices, but also those that “may ... have the effect of

prohibiting” the provision of such services.’ ” /d. (quot-

ing Beli Atl.-Md., Inc. v. Prince George’s County, 49 F.

Supp. 2d 805, 814 (D.Md. 1999), vacated and remanded

on other grounds, 212 F.3d 868 (4th Cir. 2000)); see also

Qwest Comme’ns Inc. v. City of Berkeley, 433 F.3d 1253,

1258 (9th Cir. 2006) (invalidating the locality’s regula-

tions because they “may have the effect of prohibiting

telecommunications companies {from providing ser-

vices”); Qwest Corp. v. City of Portland, 385 F.3d 1236,

1241 (9th Cir. 2004) (emphasizing that “regulations that

may have the effect of prohibiting the provision of tele-

communications services are preempted [by § 253(a)]’”).

It followed from that truncated version of the statute

that, if a local regulation merely “create|[s] a substantial

... barrier” to the provision of services or “allows a city

to bar” provision of services, Auburn, 260 F.3d at 1176,

then § 253(a) preempts the regulation. Applying that

broad standard, we held that the municipal regulations

at issue in Auburn were preempted because they im-

posed procedural requirements, charged fees, authorized

civil and criminal penalties, and—‘“the ultimate

cudgel”—reserved discretion to the city to grant, deny,

or revoke the telecommunications franchises. /d.

Our expansive reading of the preemptive effect of

§ 253(a) has had far-reaching consequences. The Az-

burn standard has led us to invalidate several local regu-

lations. See Berkeley, 483 F.3d at 1258 (holding that

Berkeley's regulations were preempted by § 2538(a));

Portland, 385 F.3d at 1239-42 (reversing the district

court’s holding that Portland’s regulations survived pre-

emption and remanding for additional analysis). Three

of our sister circuits also have followed our broad inter-

pretation of § 253(a), albeit with little discussion. See

P.R. Tel. Co. v. Municipality of Guayanilla, 450 F.3d 9,

18 (1st Cir. 2006) (citing Qwest Corp. v. City of Santa Fe,

380 F.3d 1258, 1269 (10th Cir. 2004)); Santa Fe, 380 F.3d

at 1270 (quoting Auburn, 260 F.3d at 1176); TCG NY.,

Inc. v. City of White Plains, 305 F.3d 67, 76 (2d Cir.

2002). Applying our Auburn standard, federal district

courts have invalidated local regulations in tens of cases

across this nation’s towns and cities. See, eg., NextG

Networks of Cal., Inc. v. County of Los Angeles, 522 F.

Supp. 2d 1240, 1253 (C.D. Cal. 2007); TC Sys., Inc. v.

Town of Colonie, 263 F. Supp. 2d 471, 481-84 (N.D.N.Y.

2003); XO Mo., Inc. v. City of Maryland Heights, 256 F.

Supp. 2d 987, 996-98 (E.D. Mo. 2003).

But the tension between the Auburn standard and

the full text of § 253(a) has not gone unnoticed. See City

10a

of Portland v. Elec. Lightwave, Inc., 452 F. Supp. 2d

1049, 1059 (D. Or. 2005) (“The Ninth Circuit’s interpreta-

tion of the scope of section 253(a) appears to depart from

the plain meaning of the statute ....”); Qwest Corp. v.

City of Portland, 200 F. Supp. 2d 1250, 1255 (D. Or.

2002) (construing the Auburn standard as dictum be-

cause reading § 253(a) as preempting regulations that

may have the effect of prohibiting telecommunications

services “simply misreads the plain wording of the stat-

ute”), rev'd by Portland, 385 F.3d at 1241 (“Like it or

not, both we and the district court are bound by our prior

ruling [in Auburn].”); see also Newpath Networks LLC

v. City of Irvine, No. SACV-06-550, 2008 WL 21996839, at

*4 (C.D. Cal. Mar. 10, 2008) (noting that “the Court is

sympathetic to Irvine’s argument that judicial decisions

in this area have not been particularly instructive in tell-

ing municipalities how they may regulate in accordance

with the... Act”). Recently, the Eighth Circuit rejected

the Auburn standard and held that, to demonstrate pre-

emption, a plaintiff “must show actual or effective prohi-

bition, rather than the mere possibility of prohibition.”

Level 3 Comme’ns, L.L.C. v. City of St. Louis, 477 F.3d

528, 532-33 (8th Cir. 2007); see also AT&T Comme’ns of

Pac. Nw., Ine. v. City of Hugene, 177 Or. App. 379, 35

P.3d 1029, 1047-48 (2001) (implicitly rejecting the Aw-

burn standard).

We find persuasive the Eighth Circuit’s and district

courts’ critique of Auburn. Section 253(a) provides that

“{njo State or local statute or regulation ... may pro-

hibit or have the effect of prohibiting ... provi[sion of]

. telecommunications service.” In context, it is clear

that Congress’ use of the word “may” works in tandem

with the negative modifier “[nJo” to convey the meaning

that “state and local regulations shall not prohibit or

have the effect of prohibiting telecommunications ser-

lla

vice.” Our previous interpretation of the word “may” as

meaning “might possibly” is incorrect. We therefore

overrule Auburn and join the Bighth Circuit in holding

that “a plaintiff suing a municipality under section 253(a)

must show actual or effective prohibition, rather than the

mere possibility of prohibition.” Level 3 Comme’ns, 477

F.3d at 532.

Although our conclusion rests on the unambiguous

text of § 253(a), we note that our interpretation is consis-

tent with the FCC’s. See Jn re Cal. Payphone Ass’n, 12

F.C.C.R. 14191, 14209 (1997) (holding that, to be pre-

empted by § 253(a), a regulation “would have to actually

prohibit or effectively prohibit” the provision of ser-

vices); Natl Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967, 980 (2005) (holding that the

two-step Chevron U.S.A. inc. v. Natural Res. Def. Coun-

cil, Inc., 467 U.S. 837 (1984), analysis applies to FCC rul-

ings). Were the statute ambiguous, we would defer to

the FCC under Chevron, as its interpretation is certainly

reasonable. 467 U.S. at 843. Our narrow interpretation

of the preemptive effect of § 253(a) also is consistent with

the presumption that “express preemption statutory

provisions should be given a narrow interpretation.” Air

Conditioning & Refrigeration Inst. v. Energy Res. Con-

servation & Dev. Comm’n, 410 F.3d 492, 496 (9th Cir.

2005).

Our present interpretation of § 253(a) is buttressed

by our interpretation of the same relevant text in

§ 332(c)(7)(B)G)(I1D—“prohibit or have the effect of pro-

hibiting.” In MetroPCS, to construe § 332(¢)(7)(B)@dD,

we focused on the actwal effects of the city’s ordinance,

not on what effects the ordinance might possibly allow.

400 F.3d at 732-34. Indeed, we rejected the plaintiff's

argument that, because the city’s zoning ordinance

12a

granted discretion to the city to reject an application

based on vague standards such as “necessity,” the ordi-

nance necessarily constituted an effective prohibition.

Id. at 724, 732. Consequently, our interpretation of the

“effective prohibition” clause of § 332(e)(7)(B)@dI) dif-

fered markedly from Auburn’s interpretation of the

same relevant text in § 253(a). Compare MetroPCS, 400

F.3d at 731-35 (analyzing, under § 332(c)(7)(B)\WM UD,

whether the city’s ordinance and decision actually have

the effect of prohibiting the provision of wireless ser-

vices), unth Portland, 385 F.3d at 1241 (“[Rlegulations

that may have the effect of prohibiting the provision of

telecommunications services are preempted _ [by

§ 253(a)].”); compare also MetroPCS, 400 F.3d at 732

(rejecting the argument that “the City’s zoning ‘criteria,’

which allow for [permit] denials based on findings that a

given facility is ‘not necessary’ for the community, are

‘impossible for any non-incumbent carrier to meet’ and

thus constitute an effective prohibition of wireless ser-

vices”), with Auburn, 260 F.3d at 1176 (holding that the

city’s ordinance is an effective prohibition under § 253(a),

in large part because the “city reserves discretion to

grant, deny, or revoke the [telecommunications] fran-

chises’”’).

When Congress uses the same text in the same stat

ute, we presume that it intended the same meaning. See

N. Sports, Inc. v. Knupfer (dn re Wind N’ Wave), 509

F.3d 938, 945 (9th Cir. 2007) (applying the presumption);

Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th

Cir. 1991) (“We must presume that words used more

than once in the same statute have the same meaning.”);

see also Smith v. City of Jackson, 544 U.S. 228, 233

(2005) (plurality opinion) (“[W]e begin with the premise

that when Congress uses the same language in two stat-

utes having similar purposes, particularly when one is

13a

enacted shortly after the other, it is appropriate to pre-

sume that Congress intended that text to have the same

meaning in both statutes.”); id. at 261 (O’Connor, J.,

concurring in the judgment) (stating that the presump-

tion should apply in the absence of “strong evidence” to

the contrary). We see nothing suggesting that Congress

intended a different meaning of the text “prohibit or

have the effect of prohibiting” in the two statutory provi-

sions, enacted at the same time, in the same statute.

Our holding today therefore harmonizes our inter-

pretations of the identical relevant text in §§ 253(a) and

332(c)(7)(B)(i)(II).* Under both, a plaintiff must estab-

lish either an outright prohibition or an effective prehibi-

tion on the provision of telecommunications services; a

plaintiff's showing that a locality could potentially pro-

hibit the provision of telecommunications services is in-

sufficient.

Because Sprint’s suit hinges on the statutory text

that we interpreted above—“prohibit or have the effect

of prohibiting’”—we need not decide whether Sprint’s

suit falls under § 253 or § 332. As we now hold, the legal

standard is the same under either.

B. The Effective Prohibition Standard Applied to

the County of San Diego’s Ordinance

Having established the proper legal standard, we

turn to Sprint’s facial challenge to the Ordinance. “A fa-

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

difficult challenge to mount successfully, since the chal-

lenger must establish that no set of circumstances exists

2 We make no comment on what differences, if any, exist between

the two statutory sections in other contexts.

l4a

under which the Act would be valid.” United States v.

Salerno, 481 U.S. 739, 745 (1987).

The Ordinance plainly is not an outright ban on wire-

less facilities. We thus consider whether the Ordinance

effectively prohibits the provision of wireless facilities.

We have no difficulty concluding that it does not.

The Ordinance imposes a layer of requirements for

wireless facilities in addition to the zoning requirements

for other structures. On the face of the Ordinance, none

of the requirements, individually or in combination, pro-

hibits the construction of sufficient facilities to provide

wireless services to the County of San Diego.

Most of Sprint’s arguments focus on the discretion

reserved to the zoning board. For instance, Sprint com-

plains that the zoning board must consider a number of

“malleable and open-ended concepts” such as community

character and aesthetics; it may deny or modify applica-

tions for “any other relevant impact of the proposed

use”; and it may impose almost any condition that it

deems appropriate. A certain level of discretion is in-

* The Supreme Court and this court have called into question the

continuing validity of the Salerno rule in the context of First

Amendment challenges. See, e.g., Wash. State Grange v. Wash.

State Republican Party, 128 8. Ct. 1184, 1190 (2008); Hotel & Motel

Ass'n of Oakland v. City of Oakland, 344 F.3d 959, 971-72 (9th Cir.

2003). In cases involving federal preemption of a local statute, how-

ever, the rule applies with full force. See Hotel & Motel Ass'n, 344

F.3d at 971 (“To bring a successful facial challenge outside the con-

text of the First Amendment, ‘the challenger must establish that no

set of circumstances exists under which the [statute] would be

valid.” (alteration in original) (quoting Salerno, 481 U.S. at 745));

see also Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995) (unani

mous opinion) (applying Salerno to a federal preemption facial chal-

lenge to a state statute).

15a

volved in evaluating any application for a zoning permit.

It is certainly true that a zoning board could exercise its

discretion to effectively prohibit the provision of wireless

services, but it is equally true (and more likely) that a

zoning board would exercise its discretion only to bal-

ance the competing goals of an ordinance-the provision

of wireless services and other valid public goals such as

safety and aesthetics. In any event, Sprint cannot meet

its high burden of proving that “no set of circumstances

exists under which the [Ordinance] would be valid,”

Salerno, 481 U.S. at 745, simply because the zoning

board exercises some discretion.

The same reasoning applies to Sprint’s complaint

that the Ordinance imposes detailed application re-

quirements and requires public hearings. Although a

zoning board could conceivably use these procedural re-

quirements to stall applications and thus effectively pro-

hibit the provision of wireless services, the zoning board

equally could use these tools to evaluate fully and

promptly the merits of an application. Sprint has

pointed to no requirement that, en its face, demonstrates

that Sprint is effectively prohibited from providing wire-

less services. For example, the Ordinance does not im-

pose an excessively long waiting period that would

amount to an effective prohibition. Moreover, if a tele-

communications provider believes that the zoning board

is in fact using its procedural rules to delay unreasonably

an application, or its discretionary authority to deny an

application unjustifiably, the Act provides an expedited

judicial review process in federal or state court. See 47

U.S.C. § 332(c)(7)(B)(ii) & (v).

We are equally unpersuaded by Sprint’s challenges

to the substantive requirements of the Ordinance.

Sprint has not identified a single requirement that effec-

16a

tively prohibits it from providing wireless services. On

the face of the Ordinance, requiring a certain amount of

camouflage, modest setbacks, and maintenance of the

facility are reasonable and responsible conditions for the

construction of wireless facilities, not an effective prohi-

bition.

That is not to say, of course, that a plaintiff could

never succeed in a facial challenge. If an ordinance re-

quired, for instance, that all facilities be underground

and the plaintiff introduced evidence that, to operate,

wireless facilities must be above ground, the ordinance

would effectively prohibit it from providing services. Or,

if an ordinance mandated that no wireless facilities be

located within one mile of a road, a plaintiff could show

that, because of the number and location of roads, the

rule constituted an effective prohibition. We have held

previously that rules effecting a “significant gap” in ser-

vice coverage could amount to an effective prohibition,

MetroPCS, 400 F.3d at 731-35, and we have no reason to

question that holding today.

In conclusion, the Ordinance does not effectively pro-

hibit Sprint from providing wireless services. Therefore,

the Act does not preempt the County’s wireless tele-

communications ordinance.

C. Section 1983 claim

We adopt the reasoning and conciusion of the three-

judge panel that 42 U.S.C. § 1988 claims cannot be

brought for violations of 47 U.S.C. § 253. Sprint Teleph-

ony, 490 F.3d at 716-18; accord Santa Fe, 380 F.3d at

1266-67; see also Kay v. City of Rancho Palos Verdes,

504 F.3d 803, 812-15 (9th Cir. 2007) (holding that § 1983

claims cannot be brought for violations of 47 U.S.C.

§ 332).

17a

AFFIRMED with respect to the § 1983 claim; other-

wise REVERSED. Costs on appeal awarded to Defen-

dants-Appellees/Cross-Appellants.

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 pre-

empted 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 effectivel)

barred by the zoning ordinance.

18a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 05-56076, 05-56435

SPRINT TELEPHONY PCS, L.P., A DELAWARE LIM-

ITED PARTNERSHIP, PLAINTIFF-APPELLANT-

CROSS-APPELLEE, AND PACIFIC BELL WIRE-

LESS LLC, A NEVADA LIMITED LIABILITY COMPANY,

D/B/A CINGULAR WIRELESS, PLAINTIFF,

COUNTY OF SAN DIEGO; GREG COX, IN HIS CAPAC-

ITY AS SUPERVISOR OF THE COUNTY OF SAN DIEGO; DI-

ANNE JACOB, IN HER CAPACITY AS SUPERVISOR OF THE

COUNTY OF SAN DIEGO; PAM SLATER, IN HER CAPAC-

ITY 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, DE-

FENDANTS-APPELLEES-CROSS-APPELLANTS.

Filed: March 13, 2007

Amended: June 13, 2007

ORDER

19a

Before MYRON H. BRIGHT,’ A. WALLACE

TASHIMA, and CARLOS T. BEA, Circuit Judges.

The unopposed motion of the National League of Cit-

ies and eight other organizations for leave to file an

Amict Curiae 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, concur-

rently with the filing of the motion, 1s ordered filed. The

motion of appellee County of San Diego for leave to file

reply in support of its petition for rehearing and rehear-

ing 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 bane and no

judge of the court has requested a vote on en banc re-

hearing. See Fed. R. App. P. 35(f). The petition for re-

hearing en banc is denied, without prejudice to a petition

for rehearing en banc as to the amended opinion.

AMENDED 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 Telecommunica-

tions Facilities zoning ordinance (“WTO”). The district

court granted a permanent injunction, agreeing with

Sprint that the WTO’s regulation of wireless facility

‘The Honorable Myron H. Bright, Senior United States Circuit

Judge for the Eighth Circuit, sitting by designation.

20a

placement violated § 253(a) of the Telecommunications

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

(codified as amended in scattered sections of U.S.C. Ti-

tles 15, 18, & 47) (“TCA”). But, the court held that

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

denied Sprint’s 42 U.S.C. § 1983 claim for money dam-

ages and attorney’s fees. See Sprint Telephony PCS,

L.P. v. County of 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 or-

der 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 Con-

gress did not intend to permit enforcement of § 253(a)

through a § 1983 damages action. We accordingly affirm

the district court.

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

TELECOMMUNICATIONS LAW 10, 861 (2d ed. 1999) (here-

inafter “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 conceptualized cellular

telecommunications in an internal technical memoran-

dum. See 1946: First Mohile Telephone Call, available

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

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

employed multiple transmission sites and re-used fre-

quencies, overcoming the limitations of the single-cell

trausmission system that was constrained by the number

of channels available within the radio spectrum first allo-

cated to mobile communications by the Federal Commu-

nications Commission (“FCC”) in 1949. See HUBER at

862 (citing General Mobile Radio Service, 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 tech-

nology took hold, the radio spectrum dedicated to mobile

communications supported only 140,000 subscribers. /d.

A. The Development of Cellular Technology

Nationwide wireless capacity grew as_ providers

adopted cellular technology and as the FCC gradually

expanded the radio spectrum available to mobile tele-

communications. See id. at 903-08; see also FCC, Cellu-

lar Services: Band Plan, available at http://wireless.fcc.

gov/services/index.htm?job=service_bandplan&id=cel-

lular (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 subscrib-

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

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

org/pdf/CTTA MidYear2006Survey.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 sup-

port today’s cellular technology is extensive. Cellular

telecommunications takes its name from the network of

hexagonal cells, which “resemble honeycombs,” blanket-

ing the coverage area. See Jeffrey Berger, Efficient

Wireless Tower Sitting: An Alternative to Section

832(c0)(7) of the Telecommunications Act of 1996, 23

TEMP. ENVTL. L. & TECH. J. 83, 87 (2004). Each cell con-

tains an antenna tower, which emits and receives signals

22a

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 sys-

tem. /d. Approximately 200,000 cellular sites currently

support more than 200 million subscribers nationwide.

See CTIA Survey.

The growing demand for cellular service requires the

construction of additional cellular sites, which has met

with opposition 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 provi-

sions 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 services.” See

§ 6002, 107 Stat. at 392-95 (codified at 47 U.S.C. § 332(e)

(1988 & Supp. V 1993)).

B. The Telecommunications Act of 1996

Congress reaffirmed its commitment to nationwide

telecommunications 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 telecommunications technologies.”

110 Stat. at 56 (1996). The TCA, which also amended the

Communications Act of 1934, in part added a section ex-

pressly preempting state and local regulations that have

the effect of prohibiting any telecommunications service:

23a

§ 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 interstate

or intrastate telecommunications service.

(b) State regulatory authority

Nothing in this section shall affect the

ability of a State to impose, on a competitively

neutral basis and consistent with section 254

of this title, requirements necessary to pre-

serve and advance universal service, protect

the public safety and welfare, ensure the con-

tinued quality of teleeommunications services,

and safeguard the rights of consumers.

Nothing in this section affects the author-

ity of a State or local government to manage

the public rights-of-way or to require fair and

reasonable compensation from telecommuni-

cations providers, on a competitively neutral

and nondiscriminatory basis, for use of public

rights-of-way on a nondiscriminatory basis, if

the compensation required is publicly dis-

closed by such government.

(d) Preemption

If, after notice and an opportunity for

public comment, the Commission determines

that a State or local government has permit-

ted or imposed any statute, regulation, or le-

gal requirement that violates subsection (a)

24a

or (b) of this section, the Commission shall

preempt the enforcement of such statute,

regulation, or legal requirement to the extent

necessary to correct such violation or incon-

sistency

(e) Commercial mobile service providers

Nothing in this section shall affect the ap-

plication 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 barri-

ers”). Congress, by preempting state and local statutes,

“ended the 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, dissenting in part); see also Cablevt-

sion 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 maintaining the

“monopoly status of certain providers, on the belief that

a single regulated provider would provide better or more

universal service,” 2d. at 98).

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

carriers, the TCA amended the code provisions applica-

ble to only mobile services. See 47 U.S.C. § 332(¢) (1994

& Supp. II 1996). Prior to passage of the TCA, § 332 in-

cluded, among other provisions, the factors the FCC

must consider as it manages the electromagnetic spec-

trum assigned to private mobile services. See id. § 332(a)

(1994). Section 332 also required commercial mobile ser-

vice providers to be treated as common carriers (subject

to limited exceptions that the FCC may establish). See

25a

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 limita-

tions, regarding the placement of wireless service facili-

ties:

(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 re-

garding the placement, construction, and

modification of personal wireless service fa-

cilities.

(B) Limitations

(i) The regulation of the placement, con-

struction, and modification of personal wire-

less service facilities by any State or local

government or instrumentality thereof—

(1) shall not unreasonably discriminate

among providers of functionally equivalent

services; and

(11) shall not prohibit or have the effect of

prohibiting the provision of personal wireless

services.

(ii) A State or local government or in-

strumentality thereof shall act on any request

for authorization to place, construct, or mod-

ify personal wireless service facilities within a

reasonable period of time after the request is

duly filed with such government or instru-

26a

mentality, taking into account the nature and

scope of such request.

(iii) Any decision by a State or local gov-

ernment or instrumentality thereof to deny a

request to place, construct, or modify per-

sonal wireless service facilities shall be in

writing and supported by substantial evi-

dence contained in a written record.

(iv) No State or local government or in-

strumentality thereof may regulate the

placement, construction, and modification of

personal wireless service facilities on the ba-

sis of the environmental effects of radio fre-

quency emissions to the extent that such fa-

cilities comply with the Commission’s regula-

tions concerning such emissions.

(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 subparagraph

may, within 30 days after such action or fail-

ure 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 incon-

sistent with clause (iv) may petition the

Commission for relief.

§ 704, 110 Stat. at 151-52 (eodified at 47 U.S.C.

§ 332(c)(7) (1994 & Supp. IT 1996)) (hereinafter “preserv-

ing local zoning authority”).

Zia

The addition of § 382(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 Hear-

ing Bd., 181 F.3d 4038, 406-07 (8d Cir. 1999); Town of

Amherst v. Omnipoint Communications Enters., Inc.,

173 F.3d 9, 13 (Ast Cir. 1999). The House, concerned that

“siting and zoning decisions by non-federal units of gov-

ernment{ |] have created an inconsistent and, at times,

conflicting patchwork of requirements which will inhibit

the deployment of Personal Communications Services as

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

lar telecommunications network,” would have required

the FCC to regulate directly the placement of wireless

facilities. H.R. Rep. No. 104-204(1), at 94 (1995), re-

printed 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 deci-

sions and preserve[ | the authority of State and local

governments over zoning and land use matters except in

the limited circumstances set forth in the 7175 confer-

ence 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 Tele-

communications Facilities Ordinance

Against the backdrop of the TCA, the County, in

April 2003, enacted Ordinance Number 9549, “An Ordi-

nance Amending the San Diego Zoning Ordinance Relat-

ing to Wireless Telecommunications Facilities.” The

WTO supplements the County’s general zoning ordi-

nance (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 permits

28a

before constructing a wireless facility: (1) Administra-

tive Site Plan Permit; (2) Site Plan with Community Re-

view Permit; (3) Minor Use Permit; or (4) Major Use

Permit. WTO § 6985. Each class of permit defines the

wireless facility projects that fall within its scope, based

on factors including the placement, visibility, and height

of the proposed structure. /d.

We briefly summarize the permit application re-

quirements of the WTO. A permit applicant must: (1)

identify the geographic 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) sub-

mit a “visual impact analysis” that describes the “maxi-

mum silhouette, viewshed analysis, color and finish pal-

ette and proposed screening,” and includes simulated

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

ing the site’s height, maintenance, noise emissions, al-

ternative 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 per-

sonnel 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 when-

ever technically and economically feasible and aestheti-

cally desirable,” and the “lease area of the proposed fa-

cility on the plot plan.” See WTO §§ 6984, 6986(B). The

WTO also discusses the general and design regulations

applicable to wireless facilities, so that an applicant may

design a compliant facility. See WTO 8§ 6985(C), 6987.

In addition to the provisions of the WTO, wireless

providers that apply for use permits are subject to other

requirements contained in the Zoning Ordinance. The

Zoning Ordinance requires applicants to submit: (1) a

29a

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 (2) an “appropriate environmental impact

review document.” See Zoning Ordinance § 7345(b).

Following submission of an application, the review

process, 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 loca-

tion, size, design, and operating characteristics of the

proposed use will be compatible with adjacent uses, resi-

dences, or structures.” Zoning Ordinance § 7358(a). The

Zoning Ordinance lists items of “consideration,” but

leaves the authority to consider “any other relevant im-

pact of the proposed use.” /d. § 7358(a)(6). Additionally,

the WTO requires that the decision maker must deter-

mine that the proposed facility is appropriately “camou-

flaged,” “consistent with community character,” and de-

signed 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, 2d. § 7362; to permit seemingly open-

ended public hearings, zd. § 7356 (hearing before grant

or denial of use permit), § 7366(h) (hearing on appeal

from grant or denial of use permit); and to order revoca-

tion or modification of a use permit following a violation,

id. § 7382(a)(2). The ordinance also observes that it is a

misdemeanor or infraction to violate a use permit’s con-

ditions. /d. § 7703.

Sprint and its co plaintiff in the district court, Pacific

Bell Wireless, LLC, dba Cingular Wireless, brought a

30a

prima facie challenge to the WTO, arguing that it was

preempted by § 253(a) (removing barriers).’ Sprint sug-

gested that the “onerous” permitting structure of the

WTO, and the discretion retained by the County, pre-

vented 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 teleeommunications providers, and thus

the ordinance discriminated against wireless telecom-

munications providers in violation of § 253(c) (addressing

state and local authority to manage the public rights-of-

way) and the Fourteenth Amendment to the Constitu-

tion. In addition to a permanent injunction against the

enforcement of the WTO, Sprint sought § 1983 money

damages and attorney’s fees. The County, however, ar-

gued that § 253(a) was inapplicable to zoning ordinances

which regulate wireless providers. Rather, the County

suggested that § 332(c)(7) (preserving local zoning au-

thority) 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

Federal 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(¢)(7)

governed challenges to individual facility placement de-

cisions. Nevertheless, Sprint’s § 253(c) and Fourteenth

* The district court dismissed with prejudice the claims of Pacific

Bell Wireless on February 8, 2005, pursuant to a stipulation of dis-

missal filed by the parties.

sla

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 ba-

sis for the WTO’s allegedly discriminatory classification,

which the court reasoned was its obligation 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 Proce-

dure 12(c) motion for judgment on the pleadings. It ar-

gued that § 253(a) did not create a private right of action,

and thus Sprint could not employ the statute to seek an

injunction or § 1988 damages and fees. The County also

argued that the members of its Board of Supervisors,

named by Sprint as defendants in their individual capaci-

ties, 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 un-

der § 253(a).” The court next recognized the presump-

tion 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

Supervisors were immune from damages in their capac-

ity as legislators and dismissed them from the suit.

Sprint and the County filed motions for summary

judgment. 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, enter alia, reas-

serted its argument that § 332(c)(7) was the provision of

the TCA applicable to the placement of wireless tele-

32a

communications facilities and thus Sprint could not bring

a claim under § 253(a). The court granted Sprint’s re-

quest for a permanent injunction, but vacated its earlier

ruling that § 253(a) could support a claim for § 1983

damages.*

if.

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.’ ” Jd. (quot-

ing 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 determinations of law-

including the determination that a local statute is pre-

empted 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); Qaest Com-

munications 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 ordinance).

‘Y.

This appeal presents three related questions of law.

The threshold question is whether Sprint may seek a

’ This case was originally assigned to the District Judge Juditn

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

judgment on the pleadings. Following Judge Keep’s death on Sep-

tember 14, 2004, the case was reassigned to District Judge Barry

Ted Moskowitz, who ruled on the parties’ motions for summary

judgment.

33a

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 mat-

ter of law. See, e.g., United States v. Bynum, 327 F.3d

986, 990 (9th Cir. 2003) (“{A] facial challenge to the con-

stitutionality of a statute is a question of law’), see also

United States v. Salerno, 481 U.S. 739 (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 de-

termine whether, as a matter of law, § 253(a) may pre-

empt 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 preemp-

tive scope of § 253(a). See U.S. Const. art. VI, § 2. We

nevertheless pause to consider the district court's juris-

diction. See Jutdice v. Vail, 480 U.S. 327, 331 (1977)

(court must consider standing of party under Article ITI

despite failure of parties to raise the issue).

We acknowledged in City of Auburn v. Qwest Corpo

ration that the Supremacy Clause permits the TCA to

34a

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 Su-

premacy Clause permits § 253(a) to expressly preempt

local laws). See also Hillsborough County v. Automated

Med. Labs., Inc., 471 U.S. 707, 712-13 (1985) (discussing

preemption under the Supremacy Clause); Shaw v.

Delta Atr Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (“A

plaintiff who seeks injunctive relief from state regula-

tion, 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 question which the federal courts have jurisdic-

tion under 28 U.S.C. § 1331 to resolve.”); Puerto Rico

Tel. Co. v. Municipality of Guayaniila, 450 F.3d 9, 16

(ist Cir. 2006) (declining to reach whether § 253(a) cre-

ates a private right because injunctive relief sought un-

der 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) pre-

emption 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 (8d Cir. 2002) (basing

§ 253 preemption on Supremacy Clause).

The Sixth Circuit has expressed concern that stand-

ing 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 Western District of Texas that,

like Auburn and the district court in this ease, proceeded

under the Supremacy Clause despite finding a lack of a

private right under the TCA. See AT&T Communica-

tions v. City of Austin, 975 F. Supp. 928, 936 (W.D. Tex.

35a

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 ju-

risdiction to preempt state and local regulations. Never-

theless, we will not disturb our approach in Auburn be-

cause we conclude that the availability of injunctive relief

is appropriate under Shaw. See Santa Fe, 380 F.3d at

1264.

2. The Applicability of § 2538(a) to Zoning Ordi-

nances Regulating Wireless Telecommunications

Facilities

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

employed to assert a facial challenge to a wireless facili-

ties 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) “deci-

sions regarding the placement, construction, and modifi

cation” 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)

(removing barriers) and § 332(c)(7) (preserving local zon

ing authority), for purposes of this case, is significant.

Both § 253(a) and § 332(¢c)(7B)@UD) employ similar

language to limit states or localities from prohibiting or

effectively prohibiting personal wireless service, the

limitation upon which Sprint relies. Compare 47 U.S.C.

253(a) (“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

36a

provide any interstate or intrastate telecommunications

service.”) with id. § 332(c)(7)(B)Gi) “The regulation of

the placement, construction, and modification of personal

wireless service facilities by any State or local govern-

ment or instrumentality thereof .... (II) shall not pro-

hibit or have the effect of prohibiting 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 fail-

ure to act, commence an action in any court of

competent jurisdiction.

Id. § 332(c)(7)(B)(v).4 Moreover, the Supreme Court has

already held that claims brought under § 3382(¢)(7) do not

support § 1983 damages or fees. See City of Rancho Pa-

los Verdes v. Abrams, 544 U.S. 118, 127 (2005) (holding

that “[e]nforecement of § 332(¢c)(7) through § 1983 would

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

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

decisions regarding the placement of wireless facilities. The deci-

sion may not “unreasonably discriminate among providers of func

tionally equivalent services;” “prohibit or have the effect of prohibit-

ing the provision of wireless services;” or be based on “the environ-

mental effects of radio frequency emissions to the extent that such

facilities comply with the Commission’s regulations concerning such

emissions.” 47 U.S.C. § 3382(e7)(B)@(1), (BX@ U1) & (BX iv). The

section also contains three procedural limitations. The decision re-

garding placement must be in writing, supported by substantial evi

dence, and reached “within a reasonable period of time.” /d.

8 832(¢e)7)(B)Gi) & (Gil) See U.S. Cellular Tel. of Greate r Tulsa

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

2003)

37a

distort the scheme of expedited judicial review and lim-

ited 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 com-

paratively unattractive vehicle to pursue a facial chal-

lenge 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

different application of the TCA. Courts have frequently

inquired whether an individual zoning decision is con-

trary to § 332(c)(7)(B) (preserving local zoning author-

ity). See, eg. Omnipoint Communications, Inc. v. City

of White Plains, 430 F.3d 529, 535 (2d Cir. 2005) (apply-

ing § 332(¢c)(7)(B)G)(11) to determine whether planning

board must grant application to construct wireless

tower); MetroPCS, Inc. v. City & County of San Fran-

cisco, 400 F.3d 715, 730-31 (9th Cir. 2005) (“MetroPCS”)

(applying § 332(c)(7)(B)G)(II) to determine whether de-

nial of conditional use permit imposed a “general ban” on

new wireless service providers); USCOC of Virginia

RSA # 3v. Montgomery County Bd. of Supervisors, 348

F.3d 262, 267-68 (4th Cir. 2003) (applying § 332(c)(7)

(B)(Gi)(11) to determine whether denial of application to

construct wireless telecommunication tower had the ef-

fect of prohibiting service); VorceStream Minneapolis,

Inc. v. St. Croix County, 342 F.3d 818, 833 (7th Cir. 2003)

(applying § 382(¢c)(7)(B)G){I]) to challenge regarding in-

dividual zoning decision). Cf Abrams, 544 U.S. at 120-21

(assuming, arguendo, that § 332 creates individually en-

forceable rights but holding § 1983 damages not avail-

able). But, facial challenges to wireless facilities zoning

ordinances are rare. But cf. Nextel Partners Inc. v.

Kingston Township, 286 F.3d 687, 693 (38d Cir. 2002)

38a

(finding facial challenge to wireless facilities zuning ordi-

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

intervening change in ordinance).

The lack of cases challenging zoning ordinances is

unsurprising 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 lo-

cal authorities 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

particular 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.

c. Statutory Interpretation of the TCA

‘To decide whether 3} 253(a) (removing barriers) may

be used to invalidate a local wireless facilities zoning or-

dinance we first examine the plain language of the stat-

ute. 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 re-

39a

sult demonstrably at odds with the intention of its draft-

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

tion omitted). Legislative history may inform the inter-

pretation 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.” JNS v. Cardoza-Fonseca, 480

U.S. 421, 433 n.12 (1987) (quotation marks and citation

omitted). When a statute’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 au-

thority to decide where and how wireless facilities are

constructed and contains a procedure for challenging

those decisions. Congress, therefore, must have in-

tended, according to the County, any challenge to a wire-

less facilities zoning ordinance to proceed under that sec-

tion rather than the more expansive § 253(a), which is

not limited to issues regarding wireless facility place-

ment. Any other reading would render the reservation

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

County also relies on the House and Senate conferees

understanding of § 332(¢)(7), reported in the House Con-

ference Report accompanying the TCA:

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 au-

thority of State and local governments over

40a

zoning and land use matters except in the lim-

ited 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

The County’s insistence that any challenge to a local

zoning ordinance be lodged under § 382(c)(7)(B)\@UD

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 lan-

guage [of § 253(a)] to be clear and ‘virtually absolute’ in

restricting municipalities to a ‘very limited and pro-

scribed role in the regulation of telecommunications.’ ”

Berkeley, 4383 F.3d at 1256 (citation omitted). Section

253 protects all common carriers, and applies to “com-

mercial 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 ser-

vice providers from the protections of § 253; to the con-

trary, FCC decisions apply § 258 to claims that a state or

local statute regulating wireless service providers vio-

lates the substantive provisions of the TCA.’ See, e.g., In

° We have not located an FCC decision directly addressing the

applicability of § 253 to zoning ordinances—rather than other state

and local ordinances such as those regulating franchising-yoverning

wireless providers. The FCC tentatively expressed the opinion that

it could invalidate a zoning ordinance under § 253. See In re Cellu-

lar Telecomm. Indus. Ass'n, 12 F.C.C.R. 11795, 11797 (1997) (re-

quest for comment on supplemental pleading cycle). In that admin-

istrative proceeding, the CTIA challenged a moratorium on the con-

struction of telecommunications facilities. The FCC invited com-

ment regarding its tentative conclusion that,

4la

re Pittencrieff Communications, Inc., 13 F.C.C.R. 1735

(1997), affd sub nom. Cellular 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(¢)(7) (pre-

serving local zoning authority). In Abrams the Supreme

Court observed that § 332(c)(7) “imposes specifie limita-

tions on the traditional] authority of state and local gov-

ernments 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) cre-

ated “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). Jd. 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(¢)(7)’s

limitations through § 1983. /d. at 127.

In the present litigation, however, we are asked to

examine the general provisions of § 253(a) rather than

Section 332(¢)(7)(B)(v) does not, however, limit our

authority to review loca! 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 Jn re Cellular Telecomm. Indus. Ass’n, 14

F.C.C.R. 9174 (1999). In a separate proceeding, the FCC examined

whether a local ordinance limiting the placement of payphones on

private land violated § 253(a), and determined that it did not. See Jn

re Cal. Payphone Ass'n, 12 F.C.C.R. 14191 (1997).

42a

the specific limitations of § 332(c)(7). Sprint does not re-

sort to the substantive or procedural limitations that are

unique to § 332(c)(7). Rather, the company seeks en-

forcement of a preemption that is common to both

§ 253(a) and § 332(c)(7)B)U1). Thus, we find the dis-

tinction 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 fa-

cie 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.

Interpreting § 253(a) to preempt certain local wire-

less zoning ordinances does not negate the substantive

and procedural elements of § 332(c)(7). See Bowse Cas-

cade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991)

(courts must make “every effort not to interpret a provi-

sion in a manner that renders other provisions of the

Same statute inconsistent, meaningless or superfluous”).

Section 332(c)(7) prescribes a “restrictive private rem-

edy” for individuals seeking “[jJudicial review of zoning

decisions.” See Abrams, 544 U.S. at 121, 122. The pro-

cedure for judicial review allows individuals to challenge

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

ernment 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. /d.

The County argues that permitting a facial challenge

to an entire ordinance under § 253(a) would create a “gi-

ant loophole” in § 382(c)(7). But, that argument ignores

§ 332(c)(7)’s preferential treatment of challenges to indi-

vidual zoniny decisions and the additional limitations and

43a

requirements that § 332(c)(7) places on zoning authori-

ties. A zoning decision might be challenged because it

does not comply with the procedural requirements of

§ 332(c)(7). See id. § 332(e)(7)(B)Gi) & (iii) (decision must

be in writing, supported by substantial evidence, and

reached “within a reasonable period of time.”). The deci-

sion might also violate the substantive provisions of the

section. See id. § 332 (c)7) Bi), (TD) & (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 pro-

hibiting 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 limitation for chal-

lenges to individual zoning decisions would be left intact.

Cf. Abrams, 544 U.S. at 126 (“[cjonstruing § 382(c)(7) ...

to create rights that may be enforced only through the

statute’s express remedy” (emphasis added)). Ulti-

mately, the difficulty of raising a facial challenge to a

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

likely prevent the secnario that the County suggests;

wireless providers could not simply avoid § 382(c)(7)’s

period of limitation by styling their challenges to indi-

vidual zoning decisions as facial challenges under

§ 253(a).° Rather, § 332(c)(7) would continue to offer a

more expedient, and extensive, basis for review.

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

standard” for suecessful facial challenges under § 248(a) than under

§ 332(cX7)(B)G), relying on a supposed conflict between dicta in

MetroPUS, 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 decision ) and Auburn, 260 F.3d at 1175 (discussing under

44a

Additionally, other provisions contained in § 253 sug-

gest that Congress did not perceive a contradiction be-

tween § 253(a) and § 332(c)(7). Congress expressly rec-

ognized the potential of § 253(a) to interfere with other

provisions of § 332. Section 253(e) exempts from pre-

emption § 332(c)(3) (addressing limited state regulation

of wireless service rates). See 47 U.S.C. § 253(e). Con-

gress also excluded from § 253(a)’s preemptive scope

state and local regulations requiring “fair and reason-

able” compensation for the use of public rights-of-way

and requiring telecommunications providers to serve ru-

ral areas. See id. § 253(c), (). Had Congress harbored a

similar concern that § 253(a) could negate the protec-

tions allegedly extended by § 332(c)(7) it could have in-

cluded a similar exemption, but it did not do so. Because

this series of exclusions demonstrates Congress’s aware-

ness that § 253 could affect § 332, and because the exist-

ing 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 affir-

mation of § 253(a)’s applicability to state and local wire-

less zoning ordinances. See Clark, 460 F.3d at 1169;

§ 253(a) a facial challenge to a franchise regulation). Though we

conclude here that Sprint’s challenge to the WTO meets the crite-

rion 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 predicated on a zoning

decision

* “The expression of one is the exclusion of another.” The Su-

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

of statutory interpretation. It cautioned that the canon “does not

apply to every statutory listing or grouping; it has force only when

the items expressed are members of an ‘associated group or series,’

justifying the inference that iterns not mentioned were excluded by

deliberate choice, not inadvertence.” See Barnhart v. Peabody Coal

45a

Austein v. Schwartz Un 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 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. Oce-

anic Contractors, Inc., 458 U.S. 564, 571 (1982). We con-

clude that the legislative history of the TCA does not in-

dicate that Congress intended a result contrary to the

plain reading of the statute.

Relying on the House Conference Report accompa-

nying the TCA, we have recognized that, “one of the

primary purposes of section 332(c)(7) is to protect the

legitimate traditional zoning prerogatives of local gov-

ernments.” MetroPCS, 400 F.3d at 727 n.5. The confer-

ees inserted § 332(c)(7) (preserving local zoning author-

ity) 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 28-29.

‘

Co., 5387 U.S. 149, 168 (2003) (citation omitted). Here, although

Sprint dues net make direct reference to the canon, it argues that

we should interpret Conyress’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. Echaza-

bal, 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).

46a

There is no indication, however, that Congress feared

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

zoning ordinances it intended to permit under

§ 332(¢)(7). Indeed, — both § 253(a) and

§ 332(¢e)(7)(B)G@UID proscribe substantively the same lo-

cal regulations: those that prohibit or have the effect of

prohibiting personal wireless service. The Conference

Report explains, in the context of § 332(c)(7), that “{ilt is

the intent of this section that bans or policies that have

the effect of banning personal wireless services or facili-

ties not be allowed and that decisions be made on a case-

by-case basis.” See H.R. Conf. Rep. No. 104-458, at 208,

1996 U.S.C.C.A.N. at 222. The similar language of the

sections and the Conference Report demonstrates that

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

§ 332(e7)( BG ID.

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 individual challenging the zoning decision

“act expeditiously in deeiding such cases.” See H.R.

Conf. Rep. No. 104-458, at 209, 1996 U.S.C.C.A.N. at 223.

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 pas-

sage of the state or local regulation challenged or a par-

ticular zoning decision applying a state or local regula-

tion.

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.

47a

B. Preemption of the WTO

We next consider whether the WTO is preempted by

the TCA. The County argues that the additional re-

quirements imposed by the WTO are consistent with

general zoning principles 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 wireless service

in Auburn. Sprint also argues that the WTO is not

“competitively neutral” because it regulates wireless

providers in a manner not applicable to all utility provid-

ers and likens 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 discussing preemption of local ordinances under

§ 253(a). See Auburn, 260 F.3d at 1176 (invalidating lo-

cal franchising ordinance); Santa Fe, 380 F.3d 1258

(preempting right-of-way ordinance that, inter alia, in-

creased rent, imposed costly new equipment require-

ment, and permitted unfettered discretion); Cox Com-

munications PCS, L.P. v. City of San Marcos, 204

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

regulations requiring conditional use permit to install

facilities in public right-of-way violated § 253(a)); Qwest

Comm. Corp. v. City of Berkeley, 146 F. Supp. 2d 1081

(N.D. Cal. 2001) (considering whether public right-of-

way ordinance violated § 253(a)). Informed by those

opinions, the district court focused on the WTO's appli-

cation submission requirements, the discretion reserved

to the zoning authority, the public hearing requirements,

and the criminal penalties for violation of a use permit.

48a

The court concluded that the combination of these fac-

tors had the effect of prohibiting wireless service in a

matter similar to the impermissible franchising ordi-

nance in Auburn.

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 Or-

dinance by adding submission requirements to an al-

ready voluminous list. See WTO § 6984. Those require-

ments are in addition to the open-ended discretion and

threat of criminal penalties contained in the Zoning Or-

dinance. The WTO itself explicitly allows the decision

maker to determine whether a facility is appropriately

“camouflaged,” “consistent with community character,”

and designed to have minimum “visual impact.” See

WTO 8§ 6985, 6987. We find the County’s retort—that

the elements of the WTO challenged by Sprint are tradi-

tional facets of zoning that are unobjectionable for the

simple reason that the WTO is a zoning ordinance rather

than a franchise or public right-of-way ordinance—

uneonvineing. Though Auburn discussed a franchise or-

dinance, our concerns in this case are largely the same.

We conclude that the WTO imposes a permitting struc-

ture and design requirements that presents barriers 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 dam-

ages and fees. The district court, reversing its earlier

holding, determined that § 253(a) (removing barriers)

does not create a private 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)

49a

does not create a private right), but presents a question

of first impression in our circuit. Cf Bell South Tele-

comm., 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 enforce-

able under § 1983, nor implies a separate private right of

action.” 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 mght enforceable under

3 1983); Qwest Communications Corp. v. City of Berke-

ley, 202 F. Supp. 2d 1085, 1090-96 (N.D. Cal. 2001) (find-

ing 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

* The question in this case, of whether § 253(a) creates a mght en-

forceable under § 1983, overlaps with but is distinct from the ques-

tion 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 Congress intended to create not only

a private right but also a private remedy. In contrast, once a plain

tiff demonstrates that a statute confers an individual right, the right

is presumptively enforceable by § 1983, and the plaintiff 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) (citations

and quotation marks o1‘tted). The test in Cort v. Ash, 422 U.S. 66

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

a statute implies a private nght of action, but not for determining

whether a statute creates a might enforceable under § 1983.

50a

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

that § 253(a) and (b) do not).

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 enforcement 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. 108, 106-08 (1989) (“Given the va-

riety of situations in which preemption claims may be

asserted, in state court and in federal court, it would ob-

viously be incorrect to assume that a federal right of ac-

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

law pre-empts state regulatory authority.” /d. at 107-

O&8). Here, three requirements guide our inquiry into

whether Congress created a right enforceable under

§ 1983: “1) that Congress intended the statutory provi-

sion 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 preca-

tory 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 “congres-

sional 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 con-

ferred right will not support a 1983 action.” /d. at 115Y

(quoting Gonzaga Univ. v. Doe, 5386 U.S. 273, 283, 284

(2002)) (citations and quotation marks omitted).

5la

Neither § 253(a), nor, for that matter, any other sub-

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

Section 253 is phrased only in terms of the parties re-

stricted—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 telecommunications providers.

See 110 Stat. at 56 (stating that the Act’s purpose is “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 telecommunications tech-

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

companies like the plaintiffs in this case as the “identifi-

able class” required for an enforceable § 1988 right. See

Gonzaga Univ., 536 U.S. at 284 (quoting Touche Ross &

Co. v. Redington, 442 U.S. 560, 576 (1979)). We thus

agree with the Tenth Circuit that § 253(a) does not cre-

ate a right enforceable under § 1983.

To the extent that Sprint also argues Congress cre-

ated 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 85, but among those factors

Congressional intent is paramount. See Northwest Air-

lines, Inc. v. Transp. Workers Union of Am., 451 U.S.

77, 94 (1981); Thompson v. Thompson, 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 imphed

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 or-

dinances before the FCC in Washington, D.C., and thus

JLd

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 mu-

nicipalities to liability through an implied private right of

action. We need not examine 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|.]’’)).

When Congress passed the TCA in 1996 it expressed

its intent to remove barriers inhibiting the development

of teleecommunications service. Though the act did not

“federalize telecommunications land use law,” South-

western Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57

(lst Cir. 2001), it established meaningful limits beyond

which state and local governments may not inhibit teie-

communications by preventing the construction of wire-

less communications facilities. Accordingly, we deter-

mine that local zoning ordinances regulating the con-

struction and placement of wireless communications fa-

cilities are within the preemptive scope of § 253(a) (re-

moving barriers). Moreover, the County’s WTO is out-

side the scope of permissible land use regulations be-

cause it has the effect of prohibiting wireless communi

cation services. We thus affirm the decision of the dis-

trict court that § 253(a) preempts the WTO as a matter

of law. Finally, we conclude that § 253(a) does not create

a private right of action enforceable under § 1988 and

affirm the district court’s denial of relief under the sec-

tion.

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.

54a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF

CALIFORNIA

Case No. 03-CV-1398

SPRINT TELEPHONY PCS, L.P., A DELAWARE LIM-

ITED PARTNERSHIP, AND PACIFIC BELL WIRELESS,

LLC, A NEVADA LIMITED LIABILITY COMPANY, DBA CIN-

GULAR WIRELESS, PLAINTIFFS

Vv.

COUNTY OF SAN DIEGO, A DIVISION OF THE STATE OF

CALIFORNIA; GREG COX, IN HIS CAPACITY AS A SUPER-

VISOR OF THE COUNTY OF SAN DIEGO; DIANNE JACOB,

IN HER CAPACITY AS SUPERVISOR OF THE COUNTY OF SAN

DitGo; PAM SLATER, IN HER CAPACITY AS A SUPERVI-

SOR OF THE COUNTY OF SAN DIEGO; RON ROBERTS, IN

HIS CAPACITY AS A SUPERVISOR OF THE COUNTY OF SAN

DIEGO; AND BILL HORN, IN HIS CAPACITY AS A SUPER-

VISOR OF THE COUNTY OF SAN DIEGO, DEFENDANTS.

July 8, 2005

MOSKOWITZ, District Judge.

ORDER

On December 1, 2004, Sprint Telephony PCS, L.P.

(“Sprint”) filed a motion for partial summary judgment.

55a

On December 17, 2004, defendants County of San Diego,

Greg Cox, Dianne Jacob, Pam Slater, Ron Roberts and

Bill Horn (collectively “County”) filed a motion for sum-

mary judgment, or, in the alternative, partial summary

judgment. For the reasons discussed below, Sprint’s

motion is GRANTED IN PART AND DENIED IN

PART and the County’s motion is GRANTED IN PART

AND DENIED IN PART.

I. Procedural Background

Sprint and Pacific Bell Wireless, LLC, dba Cingular

Wireless (“Pacific Bell”) (collectively “Plaintiffs”) com

menced this action on July 15, 2003. In their Complaint,

Plaintiffs allege that the County’s Ordinance No. 9549

N.S. (““WTO” or the “Ordinance”), which amended the

San Diego County Zoning Ordinance (“Zoning Ordi-

nance”) relating to wireless telecommunications facili-

ties, violates the Federal Telecommunications Act of

1996 (the “TCA”), Pub. L. 104-104, 110 Stat. 56 (1996).

The Complaint asserts four causes of action: (1) prohibi-

tion of provision of telecommunications service in viola-

tion of 47 U.S.C. § 253(a); (2) discriminatory regulation

of a public right-of-way in violation of 47 U.S.C. § 253(c)

and the Fourteenth Amendment; (3) violation of 42

U.S.C. § 1983; and (4) declaratory judgment. °

In an order filed on October 20, 2003, Judge Keep

granted in part and denied in part the County’s motion

to dismiss. Judge Keep granted the motion as to Plain-

tiffs’ second cause of action on the ground that section

253(c) does not provide for a private right of action.

Judge Keep also dismissed Plaintiffs’ equal protection

claim without prejudice. However, the County’s motion

was denied as to all of the remaining claims. With re-

spect to Plaintiffs’ first cause of action, Judge Keep re-

jected the County’s argument that section 253 was inap-

5oa

plicable and that section 332(¢)(7) was the only avenue

for challenging the Ordinance under the TCA.

On November 13, 2003, the County filed a motion for

judgment on the pleadings, arguing that Plaintiffs’ first

cause of action should be dismissed because there is no

private right of action under section 253(a). The County

also argued that Plaintiff's third cause of action should

be dismissed because there is no section 1988 right of

action for violations of section 253(a). In an order filed

on January 5, 2004, Judge Keep held that Plaintiffs had a

private right of action under section 253(a) and could

seek section 1983 remedies for violations of section

253(a). See Sprint Telephony PCS. L.P. v. County of

San Diego, 311 F. Supp. 2d 898 (S.D. Cal. 2004).

On September 16, 2004, this case was reassigned to

Judge Moskowitz.

On February &, 2005, Pacific Bell was dismissed from

the case with prejudice pursuant to a stipulation and or-

der thereon.

Il. Factual Background

A. The WTO

The WTO was enacted by the County in April, 2003.

The WTO states that its purpose is “to establish com-

prehensive guidelines for the placement, design and

processing of wireless telecommunications facilities in all

zones within the County of San Diego.”

The WTO establishes a four-tier application process-

ing structure. (Zon. Ord. § 6985.) Tier 1 applies to invisi-

ble wireless facilities and facilities with very low visual

impacts. Tier 2 applies to low visibility facilities in the

commercial, industrial or special purpose zones, or facili-

ties in any of th

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