9th Circuit Strikes Down Municipal Wireless Zoning Ordinance Under Section 253 of the Communications Act

On March 13, 2007, the Ninth Circuit Court of Appeals in Sprint Telephony PCS, L.P. v. County of San Diego held that the County of San Diego’s wireless zoning ordinance is an unlawful barrier to entry in violation of Section 253 of the Communications Act. While the application of Section 253 to wireless zoning ordinances has been addressed by several district courts (as recently as last week, as DWT reported on March 12, 2007), the Sprint decision is the first by the Ninth Circuit and is critical because it preempts the County’s requirements. As such, it adds significant weight to the proposition that wireless telecommunications providers can challenge municipal zoning ordinances under Section 253 and that such ordinances will violate Section 253, on their face, if they impose burdensome processes or unfettered discretionary review.

In this case, Sprint challenged the County of San Diego’s wireless telecommunications ordinance (WTO) on the ground that, on its face, the WTO prohibited or had the effect of prohibiting the provision of telecommunications services and thus violated Section 253 of the Communications Act, 47 U.S.C. § 253. The District Court granted Sprint a preliminary injunction, and subsequently held on the merits that the WTO violated Section 253 and was preempted and unenforceable. The District Court focused on the WTO’s burdensome application process (which is typical of wireless zoning ordinances), the reservation of discretion to the County (particularly over aesthetic matters), and the multi-layered decision making process, which included various appeals and public hearings, all of which left deployment of telecommunications equipment in the discretion of the County. The district court held that the WTO had the effect of prohibiting the provision of telecommunications services in violation of Section 253.

On appeal, the Ninth Circuit addressed three issues: (1) whether wireless providers can challenge a wireless zoning ordinance under Section 253; (2) whether the County’s WTO violated Section 253(a) as a matter of law; and (3) whether Sprint could seek monetary damages under 42 U.S.C. § 1983.

Like the district court in the recent Verizon Wireless v. Rio Rancho case, the Ninth Circuit had little difficulty finding that wireless providers have standing to challenge local zoning ordinances as preempted by Section 253. The Court recognized that Section 253 does not differentiate between different types of “telecommunications” providers. In addition, the Ninth Circuit rejected the County’s argument that Section 332(c)(7) is the sole remedy for wireless providers to challenge local zoning ordinances.

Applying its well-established precedent from City of Auburn v. Qwest, the Ninth Circuit concluded that the County’s WTO had the effect of prohibiting the provision of telecommunications services in violation of Section 253, stating that its concerns in this case “are almost identical” to those in Auburn. Like the district court, the Ninth Circuit focused on the burdensome process. The Court pointed out that the WTO supplements the general zoning ordinance, “adding submission requirements to an already voluminous list.” It also focused on the “open-ended discretion” left to the County by the WTO. Indeed, in a critical point, the Court singled out the discretionary aesthetic provisions, where the County has discretion to determine if a facility is “appropriately ‘camouflaged,’ ‘consistent with community character,’ and designed to have minimum ‘visual impact,’” as preempted by Section 253(a). The Court rejected as “unconvincing” the County’s argument that such elements “are traditional facets of zoning that are unobjectionable for the simple reason that the WTO is a zoning ordinance rather than a franchise or public right-of-way ordinance.”

Finally, the Court affirmed the district court’s decision that Sprint could not recover damages under Section 1983. The Ninth Circuit opines that Congress did not intend for there to be a private right of action for companies to enforce Section 253. Rather, the Court holds, such challenges are brought as federal preemption claims under the Constitution. In support of its conclusion, the Court asserts that the legislative history of Section 253 indicates a Congressional concern about the burden on municipalities of defending actions before the FCC. The Court concludes that if Congress wanted to shield municipalities from the cost of having to go to Washington, D.C., it would not intend for them to be exposed to liability for damages under Section 1983.

Despite the Court’s holding on Section 1983, the decision is a significant victory for the wireless industry. The burdensome application requirements, multilayered discretionary review process, and open-ended aesthetic standards held unlawful in the San Diego County WTO are typical of many municipal wireless zoning ordinances. Wireless providers, in the Ninth Circuit particularly but also nationwide, can point to the Sprint decision to avoid traditionally lengthy, burdensome, and uncertain zoning requirements. Indeed, the Ninth Circuit’s holding and rationale are particularly timely and important as providers actively deploy facilities to provide next generation services or expand capacity to meet ever-growing consumer demand for wireless service.

Davis Wright Tremaine LLP is at the forefront of advancing the legal rights of wireless providers under Section 253 and Section 332. If you would like more information regarding the Ninth Circuit’s decision or others like it, please contact us.