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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0885%3A01

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

TREES wrt US.
\\4 Dp 08-759 DEC 10 2m99
No OFFICE

emeeennmeeeemnns t mmmmpeeena ts OF THE GLEBK
Ju the Supreme Court of the Gnited States

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
Ca BOI siiiesisitticd ctrceticerseetieretis cadena 1
IO hiss iiichchinncesninintne Antsneeaietbcadeapedelataenmbaarentacmbaaa Zz
SSCAUUEOPY DTOVISIONS INVOIVOR .............. 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) 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)

2

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) . 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

6

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

10

§ 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

1]

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-

12

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.

13

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

14

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

15

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

16

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

17

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.

18

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

19

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)).

20

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).

21

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).

23

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-

24

sion, at 1-3 (Nov. 5, 2008) . 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-

25

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

26

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).

27

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).

28

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.

29

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) .

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.

30

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)

2a

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

3a

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,

4a

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).

6a

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-

Ta

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-

%9

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

Sa

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

Ya

... 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,

v.

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.

I.

Today’s wireless age began when Guglielmo Marconi
developed a way for ships to communicate over radio
waves in 1895. See PETER W. HUBER ET AL., FEDERAL
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.

(c) State and local government authority

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0885%3A01. Public record. Not legal advice.