Communications Advisory Bulletin
Federal Court Enjoins Application of L.A. County
Zoning Code to Wireless Facilities
By T.
Scott Thompson, William
F. Bly and Wendy Wu
[June 2007]
In another important decision limiting the imposition of burdensome
and discretionary local zoning requirements on wireless telecommunications
deployment, on June 20, 2007, the United States District Court for
the Central District of California granted NextG Networks of California,
Inc. (NextG) a preliminary injunction, enjoining the County of Los
Angeles (the County) from enforcing its zoning requirements on NextG’s
installation of wireless telecommunications facilities. In doing
so, the court found that the County’s zoning requirements,
as applied to the deployment of wireless facilities, was preempted
by Section 253(a) of the federal Communications Act and did not
fall within the authority reserved to local governments under Section
253(c) to manage the public rights-of-way.1
NextG is a telecommunications company that constructs Distributed
Antenna Systems (DAS), which combine a fiber optic network with
low power antennas located on utility or street-light poles in public
rights-of-way. NextG uses its DAS networks to provide transport
and networking to wireless carriers, empowering them to provide
greater coverage and capacity. Because NextG’s network included
antennas, the County required NextG to comply with the County zoning
code. Like many local wireless zoning ordinances, the County’s
code was complicated, burdensome and highly discretionary. Moreover,
the County did not impose the requirements on non-wireless facilities,
even though located in the public rights-of-way, like NextG’s.
NextG filed for preliminary injunction, alleging that the County’s
zoning requirements violated its federal rights and prevented it
from meeting obligations requiring NextG to construct facilities
for customers by specified dates.
In granting NextG’s motion for preliminary injunction, the
court identified four common elements that result in preemption
of a local ordinance by Section 253: “(1) a complicated application
process (including reporting of financial information) and high
fees; (2) a public hearing on the application; (3) imposition of
criminal and civil sanctions for violations; and (4) unfettered
discretion to approve or deny the application, or revoke a permit
once issued.” The court found that all of the common elements
were present in the County’s zoning requirements, which required
submission of a variety of detailed plans, maps, and any other
information that the County might require, and put the burden
on the applicant to prove such “subjective and imprecise concepts”
as: “health, peace, and comfort” of area residents;
“use, enjoyment or valuation of property;” and “public
health, safety or general welfare.” The court found that these
requirements were “so burdensome and Byzantine as to erect
a barrier to providing telecommunications services.” The court
also found that the highly burdensome application process was complicated
by two separate public hearing requirements, including one that
was not codified, and by the imposition of criminal and civil sanctions.
Finally, the court found that the County’s zoning ordinance
“provides unfettered discretion to County officials at multiple
points in the approval process, including discretion to ultimately
deny the application, the ‘ultimate cudgel’ in the preemption
analysis.”
The court rejected the County’s arguments that its zoning
code (1) does not require a franchise, and (2) is of general applicability.
The court noted that the County’s “not a franchise”
argument was recently rejected by the Ninth Circuit in Sprint
Telephony PCS, L.P. v. County of San Diego. The court held
that the deciding characteristic is not the label attributed to
the requirement, but whether the requirement has the effect of prohibiting
the provision of telecommunications services. For similar reasons,
the court also found the general applicability of the zoning requirements
to be irrelevant, stating that Section 253(a) “plainly preempts
not only statutes that may ‘prohibit’ the provision
of services on their face, but also that ‘have the effect’
of prohibiting the provision of services in their application…”
The court also rejected the County’s argument that its zoning
requirements constituted “management” of the public
rights-of-way within the “safe harbor” of Section 253(c).
The court found that the requirements went beyond management of
the right-of-way because they incorporated unrelated factors such
as the “use, enjoyment and valuation of adjoining property,
and the peace, comfort and welfare of neighbors.” Of perhaps
even greater importance, the court found that County’s broad
discretion to deny an application on amorphous factors, such as
“good zoning practice” and “functional development
design,” as well as the County’s discretion to request
whatever additional information it wanted from the applicant, also
exceeded the County’s management of the right-of-way. Lastly,
the court found that the zoning requirements exceeded the Section
253(c) safe harbor because they discriminated against wireless facilities.
Having found NextG likely to succeed on the merits of the case,
the court held that absent the requested relief, NextG would suffer
irreparable harm to its goodwill and reputation. The court noted
that “[t]he wireless telecommunications industry is capital-intensive
and consists of only a small number of major players, so the inability
to dispatch services and the resulting loss of current revenue could
result in insufficient funding for future projects and inhibit Plaintiff’s
ability to grow its business.” The court rejected the County’s
argument that NextG brought the harm upon itself by agreeing to
unrealistic contractual commitments, holding that NextG should not
be required to build into its contracts time to comply with an invalid
permit process and that the harm stems from the passage of the requirements,
not from NextG’s contractual obligations.
The NextG v. Los Angeles County decision provides further
support for the proposition that local governments cannot impose
burdensome and open-ended zoning codes on wireless telecommunications
providers. The decision reiterates that federal policy promoting
the rapid deployment of competitive and advanced telecommunications
networks must not be thwarted by a patchwork quilt of local requirements
and the fickle winds of local politics.
Footnote
1 NextG
also made claims under Sections 7901 and 7901.1 of the California
Public Utilities Code. However, finding that federal law was dispositive
on the issues presented, the court declined to consider whether
the zoning ordinance was also preempted by state law. The scope
of local government’s authority over wireless telecommunications
facilities in the public rights-of-way under Section 7901 and 7901.1
is presently at issue before the California Supreme Court in
Sprint Telephony PCS v. County of San Diego.
Davis Wright Tremaine attorneys Scott Thompson
and William Bly represented NextG in the case. Please feel free
to contact us if you have questions about or would like a copy of
the court’s decision.
This advisory is a publication of the Communications Group of Davis
Wright Tremaine LLP. Our purpose in publishing this advisory is
to inform our clients and friends of recent developments in the
communications industry. It is not intended, nor should it be used,
as a substitute for specific legal advice as legal counsel may be
given only in response to inquiries regarding particular situations.
Attorney Advertising. Prior results do not guarantee a similar outcome.
Thank you.
Copyright © 2007, Davis Wright Tremaine LLP.
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