Ninth Circuit Reverses 2001 Ruling Limiting Local Regulation of Wireless Towers
Wireless carriers took a hit at the Ninth U.S. Circuit Court of Appeals in San Francisco last week, which upheld San Diego County’s limits on the design, placement and size of wireless towers and poles in a dispute with Sprint Nextel. In an unusual action, an en banc panel of judges reversed a decision by the court itself and by a federal district court, which had permanently enjoined the county from enforcing the ordinance.
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“Obviously we're not happy with the results,” said a wireless industry attorney, who was still reviewing the decision Friday. The attorney noted the decision more closely aligns the Ninth Circuit with the St. Louis-based Eighth Circuit. The decision comes as carriers are expanding their networks nationwide as they roll out advanced services, which requires construction of thousands of new cell towers. Sprint could appeal the case to the Supreme Court.
“In some respects it’s a very disappointing decision,” said Andrea Williams, assistant general counsel at CTIA. As a result of the decision carriers will have to show that an ordinance is “actually prohibiting or effectively prohibiting service to an area and that means a higher standard in terms of evidence on the carrier’s part.” The decision means in an ordinance will have to go into effect before a carrier can sue to have it blocked, Williams said.
The case turned on the court’s interpretation of Section 253 of the Telecom Act, which allows the federal government to preempt local laws that prohibit the entry of telecommunications providers into a market. The Ninth Circuit set the previous standard in 2001 when it ruled on a dispute between Auburn, Wash., and Qwest on the location of wireless towers. The court said its ruling in the Auburn case “had far-reaching consequences” and had led the court to invalidate several local regulations in Berkeley, Calif., Portland, Ore. and elsewhere.
But the panel said it had previously misinterpreted language in the act stating that no local government “may prohibit or have the effect of prohibiting” provisions of telecommunications service. “Our previous interpretation of the word ‘may’ as meaning ‘might possibly’ is incorrect,” the court said. “We therefore overrule Auburn and join the Eighth Circuit in holding that ‘a plaintiff suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition.'”
“The Ordinance plainly is not an outright ban on wireless facilities,” the court continued. “We thus consider whether the Ordinance effectively prohibits the provision of wireless facilities. We have no difficulty concluding that it does not.” The court said the San Diego ordinance merely “imposes a layer of requirements for wireless facilities in addition to the zoning requirements for other structures.” The court said “none of the requirements” imposed by San Diego “individually or in combination, prohibits the construction of sufficient facilities to provide wireless services to the County of San Diego.”