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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.
Copyright
© 2007, Davis Wright Tremaine LLP.
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