9th Circuit Cell Siting Decision Rejects "One Provider Rule"

On March 7, 2005, the U.S. Court of Appeals for the Ninth Circuit issued a decision in MetroPCS, Inc. v. City and County of San Francisco¹, a case in which DWT has been representing MetroPCS. The decision resolves a number of important issues under 47 U.S.C. § 332(c)(7) which had been unsettled in the Ninth Circuit and does so in ways favorable to MetroPCS and the wireless industry. Of key importance, the Court rejects the “one provider rule” adopted in the Second and Third Circuits and finds that a city “effectively prohibits” wireless service when there is a significant gap in the aggrieved carrier’s service.

District Court Proceeding

MetroPCS’ suit against the City and County of San Francisco (the “City) is based in part on the City’s denial of MetroPCS’ application for a permit to install wireless facilities at the Geary Boulevard Mall Parking Garage. The City’s Planning Commission granted the permit but on appeal the Board of Supervisors reversed that approval. MetroPCS challenged the City’s action in the District Court, arguing in part that the denial violates Section 332. Both MetroPCS and the City filed summary judgment motions based solely on the Section 332 claims.

The District Court granted partial summary judgment in favor of the City on the “written decision,” “substantial evidence,” “discrimination” and “RF emissions” issues and denied both parties’ motions on the “effective prohibition” issue. On the “prohibition” issue, the District Court held that there is a question of fact as to whether a “significant gap” exists in MetroPCS’ service and, if so, whether there are alternatives to the Geary Boulevard site.

Decision on Appeal

The Court of Appeals affirmed the District Court's ruling that the Board's decision meets the requirements for a "written decision” under Section 332. In doing so, the Court adopted a standard more favorable to carriers, requiring local governments to issue separate written decisions with sufficient detail to allow a court to evaluate the record evidence supporting the decision. The Court also affirmed the lower court's ruling that the Board's decision was supported by substantial evidence and not impermissibly based on RF concerns.

On the effective prohibition issue, the Court of Appeals affirmed the District Court's ruling that material questions of fact remain regarding the impact of the Board's decision on MetroPCS’ service in San Francisco. The Court rejected any standard that would equate an effective prohibition with a “general ban” on all wireless facilities, holding instead that a provider need only prove that there is a significant gap in service. Moreover, the Court adopted a standard that looks to whether there is a significant gap in the individual carrier’s service. The Court rejected an approach that would find there to be no significant gap when any carrier is able to provide service to the area in question. Under the Court’s decision, if a carrier demonstrates the existence of a significant gap, it then must establish that the proposed site is the “least intrusive” means of filling that gap. The Court rejected a more draconian approach that would require the carrier to prove that the site is the “only viable option” for filling the gap.

Finally, the Court of Appeals reversed the lower court's determination that the Board's decision did not unreasonably discriminate against MetroPCS, finding that questions of fact exist regarding whether the City treated MetroPCS differently than other carriers. The Court adopted a discrimination analysis that focuses on whether the local government has treated similar facilities in similar locations in the same manner, rejecting the lower court’s much narrower approach which considered discrimination only in the context of “functionally identical” siting requests.

The Court of Appeals remanded the case to the District Court for further proceedings on the discrimination and effective prohibition claims.

The decision is available here.

Footnote:

 1 U.S. District Court for the Northern District of California, Case No. C03 0617 PJH; U.S. Court of Appeals for the 9th Circuit, Dkt. Nos. 03-16759, 03-16760.