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Metro PCS v. San Francisco
Metro PCS v.
City and County of San Francisco: The Ninth Circuit Weighs in … Finally
Normally, PlanWireless dissects a decision at length. But the Ninth
Circuit admits “… this case involves several important questions of law that
have not yet been authoritatively addressed by this Circuit.” PlanWireless
focuses on two principles of Section 704 that the Court used to remand the
finding back to the trail court:
• “Significant gap,” which PlanWireless felt was well defined and
accepted by most East Coast circuit courts, which agree that only one carrier is
needed to fill such a gap. Not so, according to the Ninth Circuit.
• “Unreasonable discrimination” no longer rests on whether a carrier is given
the same opportunities as other carriers, it means that if a proposal is
“similarly situated” as a previously approved personal wireless service
facility, it must be approved.
Our readers are reminded that decisions of the Ninth Circuit don’t overturn case
law in other districts, but it does establish case law in the far Western U.S.
and it implies confusion in these issues that may result in the U.S. Supreme
Court taking on these issues in the future.
Significant Gap
This principle has been argued before. The Third Circuit has argued it five
times, repeating the following:
… the doctrine prohibiting gaps is designed to protect the users, not the
carriers.
It is necessary for the provider to show more than (the fact) that it was denied
an opportunity to fill a gap in its service system. (parenthesis added)
These findings were challenged by Omnipoint, a carrier in Omnipoint
Communications Enterprises v. Newtown Township, which petitioned the U.S.
Supreme Court to hear the case. While it sets no precedent, the Supreme Court
declined to hear the Third Circuit decision.
The Ninth Circuit, in upholding a Northern District of California federal court
finding, believes that any carrier may have its own “significant gap.” So, any
carrier that claims ample coverage by its five competitors, as Metro PCS
affirmed, can still complain of its own “significant gap” and therefore a local
government denial may be a prohibition of service contrary to Section 704 of the
Telecommunications Act.
PlanWireless wonders where this kind of logic is going: how does a carrier
interpret its own significant gap? If a carrier represents a “significant gap”
as a two-square block area, does such a small coverage objective qualify for
prohibition of service protection? Must the city hire its own radio frequency
engineers to dispute each carrier’s representation of a significant gap?
In developed areas, such as San Francisco, there will have to be, for each
carrier, a new cell site every 80 meters. That is a lot of significant gaps
still to be claimed and PlanWireless thinks the whole notion of
significant gap has gone from the sublime (one carrier can fill a significant
gap) to the ridiculous (every carrier has its own significant gap).
Unreasonable Discrimination
PlanWireless thought this principle was a no-brainer. If a carrier shows
continuous denials during a time period when other carriers are being approved,
there may be unreasonable discrimination. But, for a carrier to point to
something that was built 10 years ago and would never stand a chance of being
approved today, and for that carrier to claim “The City let them do it, so the
City must let us do it,” is strictly counter to good public policy.
If the courts allow the mistakes of the past to be replicated under the
principle of “similarly situated,” any carrier can propose anything anywhere
that just happened to be acceptable at the time when the approving authority
didn’t know any better.
PlanWireless thinks it is time for wireless planning rather than ad hoc
zoning based on “significant gaps” and past “similarly situated” mistakes. We
hope our readers agree. |
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