U.S. District Court Confirms Anacortes Wireless Zoning Violates Sections 253 and 332: Court rejects city's argument to amend judgment based on 9th Circuit Sprint v. San Diego County rehearing en banc

On Friday, July 18, 2008, the U.S. District Court for the Western District of Washington confirmed its previous ruling that the wireless zoning code of the City of Anacortes, Wash., is preempted by federal law and further held that Anacortes violated federal law when it denied T-Mobile's application to install a wireless monopole in the city. The decision provides important guidance for wireless carriers and municipalities regarding the application of Section 253 of the Communications Act to wireless zoning ordinances as well as the limits on local authorities over wireless installations under Section 332(c)(7) of the Communications Act.

Preemption of city's code under Section 253

The District Court's decision first confirmed its May 6, 2008, decision that the city's wireless zoning code violated and was preempted by Section 253 of the Communications Act. In its May 6 decision (reported at 2008 US Dist LEXIS 37481), the court had followed the well established precedent of the 9th Circuit to find that the challenged ordinance contained many of the elements previously found preempted by the 9th Circuit, such as a burdensome, multi-step process that gave Anacortes unfettered discretion over a company's ability to provide telecommunications service. In its May 6 decision, the court rejected the city's argument, among others, that zoning ordinances were exempt from the preemption of Section 253.

On May 20, 2008, the city moved the District Court to amend the judgment based on the fact that on May 14, 2008, the 9th Circuit issued an order granting rehearing en banc in Sprint Telephony PCS v. San Diego County. The city argued that because the District Court had cited the Sprint San Diego panel decision, which, under 9th Circuit rules could no longer be cited or relied upon, the law had changed and the May 6, 2008, summary judgment should be reversed.

The court rejected the city's argument, noting that its decision was also premised on precedent from the 9th Circuit that predated the Sprint San Diego panel decision, such as City of Auburn v. Qwest, and moreover, that the mere grant of rehearing en banc did not mean that the panel decision was incorrect or would be reversed. This is an important development, as other localities in the 9th Circuit may incorrectly interpret the grant of rehearing en banc to mean that the 9th Circuit's existing Section 253 precedent has been changed.

City denial of wireless application violated Section 332(c)(7)

T-Mobile also challenged the city's denial of the company's application to construct a new monopole in Anacortes as a violation of Section 332(c)(7) of the Communications Act. In the July 18 decision, the court granted T-Mobile's Section 332 claim, holding that it had proposed a site that satisfied the 9th Circuit's “least intrusive means” test and that the city's denial was not supported by substantial evidence. The court rejected the city's argument that there were alternative sites available and as a result T-Mobile had not chosen the least intrusive location.

The court concluded that the “alternative” locations identified by the city were not viable. It noted that the city's expert had not analyzed the potential coverage that would result from the alternative locations, and that several of the alternative locations presented potentially greater impact on the community than T-Mobile's proposed location (e.g., because of fewer screening trees).

The court emphasized that under the 9th Circuit's standard, T-Mobile was not required to demonstrate that there were no other alternative sites available, but rather must have made a good faith effort to identify and evaluate potentially less intrusive sites. Because T-Mobile demonstrated that it had evaluated and rejected numerous alternative sites, the court held that the city's denial was an effective prohibition on the provision of wireless service in violation of Section 332(c)(7)(B)(i)(II).

City denial not supported by substantial evidence

In addition, the court held that the city's decision was not supported by substantial evidence, as required by Section 332(c)(7)(iii). The court concluded that the city's expert's opinion regarding the feasibility of alternatives lacked specificity and was speculative, as he had not performed any technical analysis of the alternative sites and had not evaluated whether the alternative sites would be less intrusive.

Moreover, the court held that the few citizen comments regarding aesthetics and property values did not support the city's conclusion that T-Mobile's proposal was not the least intrusive. It concluded that a wireless carrier “is not required to propose a site that does not intrude at all on a community's values.”

Finally, the court rejected the city's reliance on the availability of T-Mobile's Wi-Fi-based “HotSpot@Home” product as an alleged "alternative" to T-Mobile's proposed facility. The city had argued that HotSpot@Home was a less intrusive alternative, but the court recognized that HotSpot@Home did not act to close T-Mobile's coverage gap or serve to substitute for T-Mobile's standard Global System for Mobile communications (GSM) coverage and was therefore not a viable alternative supporting denial.