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9th Circuit Reverses San Diego CountyFive years ago, San Diego County adopted a comprehensive “Wireless Telecommunications Ordinance.” In July 2003, Sprint (and, at the time, Cingular) sued San Diego County by launching a facial attack on the Wireless Telecommunications Ordinance. A similar case found for San Diego County in state court, but the Southern District Court of the U.S. Federal Court found for Sprint [Cingular (then Pac Bell Wireless) found a better way to spend its money and dropped out]. This case is discussed in the August/September 2005 issue of PlanWireless. In 2005, San Diego County was “pre-empted” and “permanently enjoined” by the Southern District Court from enforcing its Wireless Telecommunications Ordinance. At issue at the trial court was the distinction between Section 253(a) and Section 332(c)(7) of the Telecommunications Act of 1996. According to Sprint, San Diego County was potentially prohibiting Sprint from even building a cell site. For prohibiting, or at least potentially prohibiting, San Diego County was enjoined from imposing its Wireless Telecommunications Ordinance. Because Sprint never proved that it tried to deploy and was repeatedly turned down, but rather was potentially thwarted by the Wireless Telecommunications Ordinance, Sprint attacked this ordinance on its “face.” The federal courts do not like facial attacks, which allege that a specific rule or policy is illegal on its face. Nevertheless, when San Diego County appealed to the U.S. Court of Appeals, Ninth Circuit, a three-judge panel upheld the District Court’s findings. This had a chilling effect on tough local ordinances regulating personal wireless service facilities, not only in the Ninth District (Western U.S.) but also across the entire nation. Fortunately, San Diego County’s allies, including the National League of Cities, intervened to support San Diego County’s request to the Court to re-examine the decision by the three-judge panel with an en banc (all 11 judges of the Ninth Circuit) review. On September 11, 2008, the three-to-zero decision in favor of Sprint was reversed 11-to-zero in favor of San Diego County, thereby limiting Sprint’s options going forward to one: petitioning the U.S. Supreme Court. Impact of This DecisionThe 11 judges admitted that previous Ninth Circuit decisions had overreached and accorded an “expansive reading” to Section 253(a). The Ninth Circuit’s reading dates back to City of Auburn (Washington) v. Qwest Communications Corp. which, with this decision, the Ninth Circuit reverses to the extent that it interprets Section 253(a) and findings of “prohibition” of services. Beyond Auburn, the Ninth Circuit admits that “Applying our Ninth Circuit’s Auburn standard, federal district courts (in three separate Circuit Courts) have invalidated local regulations in tens of cases across this nation’s towns and cities.” (Parentheses added) Conclusion by PlanWirelessIt is said that bad facts make bad law. It can now be said that bad precedential decisions make even worse law. For the record, PlanWireless featured the Ninth Circuit decision used by the en banc review in Level 3 Communications LLC v. City of St. Louis in the April/May 2007 issue. We repeat the operational paragraph from the Eighth Circuit Court here: We disagree with the approach of our sister circuits because they reach a conclusion contrary to a complete analysis of the section. Examination of the entirety of section 253(a) reveals[that] the subject of the sentence, "[n]o State or local statute or regulation, or other State or local legal requirement" is followed by two discrete phrases, one barring any regulation which prohibits telecommunications services, and another barring regulations achieving effective prohibition. However, no reading results in a preemption of regulations which might, or may at some point in the future, actually or effectively prohibit services, as our sister circuits seem to suggest. Cities and counties can now resume their regulation of personal wireless service facilities with all due dispatch. PlanWireless congratulates Tom Bunton of the San Diego County Counsel’s Office and for all the allies who hung in there with him: a job well done. |
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