METROPCS, INC., a Delaware Corporation, Plaintiff-Appellant-Cross-Appellee, v. The CITY AND COUNTY OF SAN FRANCISCO and The Board of Supervisors of the City of San Francisco, Defendants-Appellees-Cross-Appellants.
Nos. 03-16759, 03-16760
United States Court of Appeals, Ninth Circuit
Filed March 7, 2005
398 F.3d 715
Argued and Submitted Oct. 4, 2004.
VI.
Finally, Fusco appeals the district court‘s grant of summary judgment to American on his intentional infliction of emotional distress claim. Fusco has not demonstrated that American‘s blood tests, even if unlawful, were so “extreme and outrageous” as to surpass “all bounds of decency.” Kraslawsky v. Upper Deck Co., 56 Cal.App.4th 179, 65 Cal.Rptr.2d 297, 307 (1997). Summary judgment on this final claim is therefore affirmed.
The judgment of the district court is AFFIRMED in part and REVERSED in part and the case REMANDED for further proceedings. The parties shall bear their own costs on appeal.
William K. Sanders, Deputy City Attorney, San Francisco, CA, for the defendants-appellees/cross-appellants.
James A. Heard, Mackenzie & Albritton LLP, San Francisco, CA; Steven E. Grill, Devine, Millimet & Branch, P.A., Manchester, NH; Scott J. Grossberg and Javan N. Rad, Cihigoyenetche, Grossberg & Clouse, Rancho Cucamonga, CA; Paul J. Lawrence, Preston Gates & Ellis LLP, Seattle, WA; and Daniel Pascucci, Fish & Richardson, P.C., San Diego, CA, and Paul L. Weisbecker, Litigation Counsel, Cingular Wireless LLC, Atlanta, GA, for the amici curiae.
Before: CUDAHY,* GRABER and FISHER, Circuit Judges.
Opinion by Judge CUDAHY; Partial Concurrence and Partial Dissent by Judge GRABER.
CUDAHY, Circuit Judge:
MetroPCS brought the instant action in the District Court for the Northern District of California, alleging that a decision by the San Francisco Board of Supervisors denying MetroPCS permission to construct a wireless telecommunications antenna atop a city parking garage violated several provisions of the Telecommunications Act of 1996 (TCA). Specifically, MetroPCS alleged that the Board‘s decision (1) was not “in writing” as required by the TCA, (2) was not supported by substantial evidence, (3) constituted unreasonable discrimination among providers of functionally equivalent wireless services, (4) prohibited or had the effect of prohibiting the provision of wireless services and (5) was improperly based on environmental concerns about radio frequency (RF) emissions.
Both parties moved for summary judgment, and the district court granted the City‘s motion for summary judgment as to all claims except the prohibition claim, ruling that material questions of fact remained as to whether the Board‘s decision had the effect of prohibiting the provision of personal wireless services. Both parties now appeal the ruling below, and we affirm in part and reverse in part the district court‘s decision.
I. BACKGROUND
This case marks yet another episode in the ongoing struggle between federal regulatory power and local administrative prerogatives—the kind of political collision that our federal system seems to invite with inescapable regularity. And as most often happens in such cases, the courts are summoned to re-strike the balance of power between the national and the local.
More specifically, we are called upon to interpret several provisions of the TCA, an exegetical effort having implications for Federal Communications Commission (FCC) licensing authority, wireless telecommunications companies and municipal zoning authorities alike. The stakes of the current dispute are especially high since this case involves several important questions of law that have not yet been authoritatively addressed by this Circuit.
The basic facts of this case are not in dispute. MetroPCS is a provider of wireless telecommunications services. It is licensed by the FCC to construct and operate radio transmitting and receiving facilities in San Francisco, Oakland and San Jose, California (the Bay Area). On January 15, 2002, MetroPCS submitted to the City of San Francisco‘s Planning Department an application for a Conditional Use Permit (CUP) to install six panel antennas on an existing light pole located on the roof of a parking garage at 5200 Geary Boulevard (the Geary site). The proposed facility was to consist of (1) six panel antennas mounted 53 feet above the sidewalk grade on an existing light pole on the roof of a 42-foot-high parking garage, and (2) equipment cabinets mounted on an existing wall on the garage roof. Each antenna was to be five feet long and painted to match the garage. The proposed installation was designed to improve MetroPCS‘s wireless service coverage in the Richmond District, where the Geary site is located. MetroPCS chose the Geary site after evaluating the technical feasibility of several sites in the area and considering community objections to alternative site locations.
Under the San Francisco Planning Code, the Geary site is located within an
On May 20, 2002, Richmond District resident Robert Blum filed an appeal of the Planning Commission‘s decision with the City Board of Supervisors (the Board). Mr. Blum was joined by some 80 local property owners, representing almost 60% of the land area within 300 feet of the Geary site, who signed petitions in support of the appeal. Hundreds of other San Francisco residents also signed a petition opposing construction of the MetroPCS facility at the Geary site. Consistent with applicable local zoning procedures, the Board of Supervisors held a public hearing to consider the appeal on June 17, 2002. At the hearing, a number of community members (including Mr. Blum and his son) voiced disapproval of MetroPCS‘s CUP application. Local residents asserted, inter alia, that the antenna facility was not necessary for MetroPCS or the community since the Richmond District already enjoys excellent wireless service, that the facility would create a visual blight detrimental to the neighborhood character and that the facility would produce harmful RF emissions hazardous to public health.
Representatives of MetroPCS—including company managers and technical staff—appeared before the Board to speak in favor of the proposed facility, claiming that the antenna installation is necessary for MetroPCS‘s service coverage of the Richmond District and that it is an unobtrusive facility that will not constitute a visual or industrial blight on the neighborhood. At the conclusion of the hearing, the Board of Supervisors unanimously voted to overturn the decision of the Planning Commission and to deny MetroPCS the CUP. The Board‘s findings were later formally adopted in a five-page written decision disseminated on June 24, 2002.
In articulating the bases for its decision, the Board‘s written opinion formally found that (1) the proposed facility is not necessary to MetroPCS‘s ability to service the Richmond District around the Geary site, (2) the facility is not necessary for the community, since there is already adequate wireless service in the neighborhood around the Geary site, (3) the proposed facility would constitute a “visual and industrial blight” and would be detrimental to the character of the neighborhood and (4) the proposed antenna facility is not in conformity with and would not further the policies of the City‘s General Plan. The Board‘s decision asserted that its denial of the CUP application did not reflect unreasonable discrimination against MetroPCS, did not limit or prohibit access to wireless services and did not limit or prohibit the filling of a significant gap in MetroPCS‘s service coverage. The Board also maintained that the proposed facility was not the least intrusive way to provide wireless services in the Richmond District.
Specifically, the district court held that (1) the Board‘s written denial of MetroPCS‘s CUP application constituted a decision “in writing” as required by
II. JURISDICTION AND STANDARD OF REVIEW
Since the district court granted both parties’ motions to certify its order for appeal, we now have jurisdiction pursuant to
To prevail on a summary judgment motion, the moving party carries the initial burden of demonstrating to the court that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has carried that burden, it then shifts to the nonmoving party, who must present evidence that there is indeed a genuine issue for trial. See id. at 323–24. All disputed issues of fact are to be resolved in favor of the nonmoving party. Anderson, 477 U.S. at 255.
III. DISCUSSION
MetroPCS advances claims under several sections of the TCA, none of which has been authoritatively construed by this circuit.1 We address each of these claims in turn.
A. Decision “In Writing”
Under the Telecommunications Act, “[a]ny decision by a State or local government ... to deny a request to place, construct, or modify personal wireless service facilities shall be in writing.”
The TCA‘s simple directive that all local zoning decisions adverse to wireless service providers be “in writing” seems clear enough, and the City‘s five-page written decision overturning the grant of MetroPCS‘s CUP certainly qualifies as “in writing” under any colloquial or common-sense understanding of that term. (See Board Decision, ER 12, Exh. 5.) However, while the plain meaning of the TCA‘s text supports the district court‘s ruling, the circuits are split in their interpretations of the “in writing” requirement, and this Circuit has yet to take an authoritative position on the issue. See New Par v. City of Saginaw, 301 F.3d 390, 395 (6th Cir.2002) (noting the split and outlining the various interpretations); S.W. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59 (1st Cir.2001) (giving a summary of the different interpretations).
At one interpretive extreme, some courts have required that local governments explicate the reasons for their decision and link their conclusions to specific evidence in the written record. See, e.g., Omnipoint Communications, Inc. v. Planning & Zoning Comm‘n, 83 F.Supp.2d 306, 309 (D.Conn.2000) (“A local zoning authority must issue a decision in writing setting forth the reasons for the decision and linking its conclusions to evidence in the record.“) (citations omitted); Cellco P‘ship v. Town Plan & Zoning Comm‘n, 3 F.Supp.2d 178, 184 (D.Conn.1998) (similar standard); Ill. RSA No. 3, Inc. v. County of Peoria, 963 F.Supp. 732, 743 (C.D.III. 1997) (same). The rationale for this approach is that anything short of this standard ” ‘places the burden on [the] Court to wade through the record below” in order to determine the decision‘s reasoning and assess its evidentiary support. Omnipoint, 83 F.Supp.2d at 309 (quoting Smart SMR of N.Y., Inc. v. Zoning Comm‘n, 995 F.Supp. 52, 57 (D.Conn.1998)).
At the other end of the spectrum lies the Fourth Circuit, which has applied a strict
The First and Sixth Circuits have charted a middle course, requiring local governments to “issue a written denial separate from the written record” which “contain[s] a sufficient explanation of the reasons for the ... denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.” Todd, 244 F.3d at 60; Saginaw, 301 F.3d at 395–96 (adopting the Todd standard). This approach attempts a compromise between the demands of strict textualism and the requirements of more pragmatic policy values. The Todd court observed that while the statutory language of the TCA does not explicitly require detailed findings of fact or conclusions of law, and while local zoning boards are often staffed with laypersons ill-equipped to draft complex legal decisions, written decisions must be robust enough to facilitate meaningful judicial review. See Todd, 244 F.3d at 59–60.
In the proceeding below, the district court ultimately chose to apply the Todd standard and held that the Board‘s written denial of MetroPCS‘s CUP application was adequate as a decision “in writing” under this standard. 259 F.Supp.2d at 1009. The district court asserted that the Todd standard best “reconciles both the statutory language and Congressional intent of the ‘in writing’ requirement” and held that, in accordance with Todd, the City “has issued a written denial separate from the written record ... which summarizes the proceedings, articulates the reasons it rejected MetroPCS‘[s] application, and provides sufficient information for judicial review in conjunction with the written record.” Id.
We agree with the district court that the Todd standard ultimately strikes the most reasonable balance between the text of the Act and the practical demands of meaningful judicial review. While the bare language of the Act may not require more than the briefest written disposition, it also does not compel a strictly minimalist construction, and the purposes of the “in writing” requirement would be ill-served by allowing local zoning authorities to issue the kind of opaque, unelaborated ruling approved by the Fourth Circuit in AT & T Wireless v. City Council. Indeed such a minimalist approach is in direct tension with the Act‘s requirement—discussed more fully in the next section—that all local zoning decisions be supported by substantial evidence contained in a written record.
Similarly, the text of the TCA does not compel the more demanding standard outlined in Omnipoint, 83 F.Supp.2d at 309, and we find persuasive the Todd court‘s observation that such a standard might place an unduly heavy burden on lay zoning boards. As a general matter, we see no reason to insist upon a standard more exacting than is required to facilitate
As to the merits of the case at bar, we are persuaded that the district court did not err in granting the City‘s motion for summary judgment as to this claim under the Todd standard. As the district court correctly noted, the Board of Supervisors issued a five-page written decision, separate from the record, which summarized the facts of the dispute, recounted the proceedings it conducted, articulated its reasons for overturning the Commission‘s grant of the CUP and explained the evidentiary basis for its ruling. Whatever else might be said about the decision or its reasoning, it does contain sufficient explanation to enable judicial evaluation of the evidentiary support for its rationale. In fact MetroPCS itself devotes many pages of its brief to discussing and critiquing the decision‘s reasoning and evidentiary support.2
In light of all these considerations, we affirm the district court‘s ruling that the Board‘s decision was properly “in writing” under
B. Substantial Evidence
In addition to requiring that all local zoning decisions be “in writing,” the TCA also mandates that these decisions be “supported by substantial evidence contained in a written record.”
In stark contrast to virtually every other aspect of this case, there appears to be universal agreement among the circuits as to the substantive content of this requirement. While the term “substantial evidence” is not statutorily defined in the Act, the legislative history of the TCA explicitly states, and courts have accordingly held, that this language is meant to trigger “the traditional standard used for judicial review of agency decisions.” H.R. Conf. Rep. No. 104-458, at 208 (1996); see also Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir.1999) (holding that “substantial evidence” implies this traditional standard); Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1218 (11th Cir.2002) (same).
However, the substantial evidence inquiry does not require incorporation of the substantive federal standards imposed by the TCA, but instead requires a determination whether the zoning decision at issue
This approach serves several purposes. First, it enables us to avoid unnecessarily reaching the federal questions of whether a zoning decision violates the substantive provisions of the TCA. If a zoning board‘s decision, reached under its own rules, is not supported by substantial evidence, then we need not consider the application of the anti-prohibition or anti-discrimination prongs of the statute. Second, local regulations standing alone may offer little insight into whether they violate the substantive requirements of the TCA. Zoning rules—such as those that allow local authorities to reject an application based on “necessity“—may not suggest on their face that they will lead to discrimination between providers or have the effect of prohibiting wireless services. Thus, in most cases, only when a locality applies the regulation to a particular permit application and reaches a decision—which it supports with substantial evidence—can a court determine whether the TCA has been violated.
The dissent disagrees with this approach, arguing that any zoning regulation—or application of such a regulation—based on considerations of community “necessity” by its terms discriminates against new providers, cannot be squared with the TCA‘s anti-discrimination provision,
Perhaps more fundamentally, the dissent‘s conflation of the TCA‘s substantive anti-discrimination provision,
Having thus delimited the scope of our substantial evidence inquiry, we may now turn to the merits of the question before us. The most authoritative and oft-cited elaboration of the TCA‘s substantial evidence standard comes from the Second Circuit in Oyster Bay, where the court explained that “substantial evidence” implies “less than a preponderance, but more than a scintilla of evidence. ‘It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” 166 F.3d at 494 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)). This formulation has been adopted by every circuit that has had occasion to consider the issue. See, e.g., St. Croix County, 342 F.3d at 830; United States Cellular Tel. of Greater Tulsa, L.L.C. v. City of Broken Arrow, 340 F.3d 1122, 1133 (10th Cir.2003); Troup County, 296 F.3d at 1218; Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 627–28 (1st Cir.2002); 360° Communications Co. of Charlottesville v. Bd. of Supervisors, 211 F.3d 79, 83 (4th Cir.2000).
Review under this standard is essentially “deferential,” such that courts may “neither engage in [their] own fact-finding nor supplant the Town Board‘s reasonable determinations.” Oyster Bay, 166 F.3d at 494. In applying this standard to the facts of a given case, the written record must be viewed in its entirety, including all evidence supporting both parties, and “local and state zoning laws govern the weight to be given the evidence.” Id. As mentioned earlier, these baseline rules are solidly established, and the parties here do not dispute them.
The upshot is simple: this Court may not overturn the Board‘s decision on “substantial evidence” grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence (i.e., more than a “scintilla” but not necessarily a preponderance). In the proceeding below, the district court correctly identified the prevailing legal standard discussed above, 259 F.Supp.2d at 1009, and granted the City‘s motion for summary judgment on this issue, ruling that the City‘s determination that the Richmond District community did not need the MetroPCS antenna was (1) authorized by local zoning regulations and (2) supported by substantial evidence, id. at 1010–11. This ruling was legally correct.
First, the San Francisco Planning Code explicitly authorizes the consideration of community need in evaluating conditional use permit applications.
The Board‘s inquiry into this issue was not a model of thoroughness or rigor,4 but the record does clearly establish that the Richmond District is amply served by at least five other major wireless service providers and thus did not “need” the proposed Geary facility. One of MetroPCS‘s own representatives testified before the Board that “every carrier in San Francisco has coverage along Geary [Boulevard],” and reiterated that “every carrier has an antenna in this neighborhood.” Another MetroPCS representative testified that “we‘ve got Verizon, Sprint, AT & T, Singular [sic], Nextel, all in the very same vicinity [of the Geary site],” adding later that Sprint and Verizon “have great coverage. They have an excellent foot-hold in the [Geary] area.” Indeed MetroPCS argued before the Board that it needed a facility at the Geary site precisely because it had to compete with other providers who had coverage in the area.
These statements by MetroPCS were buttressed by testimony and numerous written petitions from local residents, including Robert Blum (the resident actually challenging the CUP grant), reporting that the Richmond District already enjoyed excellent wireless service. The record also contains a site map showing the locations of SprintPCS facilities in the Richmond District, including one antenna installation just 0.2 miles from the proposed Geary site. Taken in its totality, this evidence, including unequivocal statements by MetroPCS itself, constitutes at least a showing that “a reasonable mind might accept” as adequate. The “substantial evidence” provision of the TCA requires nothing more.
In briefing this issue, both parties spend considerable time discussing the evidence supporting the Board‘s findings on neighborhood character and the aesthetic impact of the proposed facility. MetroPCS in particular spends considerable time arguing that residents’ aesthetic concerns are speculative or unsubstantiated. This may be true. Yet, since the Board‘s finding on community necessity was authorized by local regulations and supported by substantial evidence, it is unnecessary to consider the evidence supporting other potential grounds for the City‘s decision. See e.g., Oyster Bay, 166 F.3d at 495 (stating that the court must “determine whether the Board possessed substantial evidence on one or both of [its permissible] grounds” for a zoning permit denial). The district court was correct in taking this analytical approach as well, relegating these ancillary concerns to a footnote. 259 F.Supp.2d at 1011 n. 6.
As the district court below identified the correct prevailing legal standard and applied it properly, we affirm the district court‘s ruling that the Board‘s decision was supported by “substantial evidence” as required by the TCA.
C. Discrimination Claim
In addition to its more concrete procedural requirements, the TCA also man-
More specifically, most courts have held that discrimination based on “traditional bases of zoning regulation” such as “preserving the character of the neighborhood and avoiding aesthetic blight” are reasonable and thus permissible. AT & T Wireless, 155 F.3d at 427; see also Willoth, 176 F.3d at 639 (same) (citing AT & T Wireless). Aside from reflecting the plain meaning of the TCA‘s text, this interpretation is also supported by the Act‘s legislative history. The House Conference Report on the TCA explained the Act‘s nondiscrimination clause as follows:
The conferees also intend that the phrase “unreasonably discriminate among providers of functionally equivalent services” will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor‘s 50-foot tower in a residential district.
H.R. Conf. Rep. No. 104-458, at 208 (1996) (emphasis added).5
In keeping with these baseline principles, almost all federal courts considering such cases have ruled that providers alleging unreasonable discrimination must show that they have been treated differently from other providers whose facilities are “similarly situated” in terms of the “structure, placement or cumulative impact” as the facilities in question. APT Pittsburgh Ltd. P‘ship v. Penn Township Butler County, 196 F.3d 469, 480 n. 8 (3d Cir.1999) (internal quotation marks omitted) (emphasis added); Willoth, 176 F.3d at 643 (“[I]t is not unreasonably discriminatory to deny a subsequent application for a cell site that is substantially more intrusive than existing cell sites by virtue of its structure, placement or cumulative impact.“); see also Omnipoint, 331 F.3d at 395 (“Permitting the erection of a communications tower in a business district does not compel the [zoning board] to permit a similar tower at a later date in a residen-
In ruling that the City‘s decision here did not unreasonably discriminate against MetroPCS, the district court employed a somewhat confusing and contradictory analysis. The court first stated that, in order to prevail, MetroPCS must demonstrate that the City treated it differently from one of its competitors for a “functionally identical request.” 259 F.Supp.2d at 1012 (emphasis added). The district court cites Sprint Spectrum L.P. v. Board of Zoning Appeals of Town of Brookhaven, 244 F.Supp.2d 108, 117 (E.D.N.Y.2003), for this proposition, though the court‘s formulation appears to reflect a misreading of that case. The court in Sprint Spectrum actually applied the broader legal principle that “a local board may reasonably consider the location of the cell tower when deciding ... whether to approve the application for construction.” Id.
Later in its opinion, the district court stated that MetroPCS must demonstrate that “other providers have been permitted to build similar structures on similar sites while it has been denied.” 259 F.Supp.2d at 1012 (emphasis added). As discussed above, given that the wireless providers in question provide “functionally equivalent services” (which is undisputed in this case), “similarly situated” is the prevailing legal standard on the discrimination issue. The district court then proceeded to find that the facilities of other service providers in the Richmond District are “differently situated from MetroPCS because they have sought to place their antenna structures at different locations within the district.” Id. Thus while it is not clear whether the decision below ultimately turned on the prevailing “similarly situated” analysis (similar structures on similar sites) or the district court‘s own “functionally identical request” standard, it appears that the court would have ruled for the City under either test. This ruling was error.
First, the district court frames the relevant legal inquiry too narrowly. For the policy reasons discussed above, the “similarly situated” standard seems to strike an appropriate balance between Congress‘s twin goals of promoting robust competition and preserving local zoning authority. The district court‘s formulation of the discrimination inquiry, under which localities may deny use permits any time the relevant antenna structures are at “different locations,” id., appears unduly narrow. Unless competing providers seek to place virtually identical antennas at the very same location or on the same specific structure, no wireless service provider could ever carry its burden to show discrimination under this test. Such a standard would give localities far too much leeway in rejecting functionally similar requests by competing providers and would thwart the competition that the TCA sought to facilitate.
As for the district court‘s final determination that the City did not, as a matter of law, unreasonably discriminate against MetroPCS, this too was error. The factual record is equivocal on the discrimination issue. While the Board‘s decision appears to have been authorized by the City Planning Code, it is not entirely clear whether the proposed MetroPCS site is “similarly situated” to other approved facilities in the Richmond District. The
While the Board maintains that the other existing wireless facilities in the Richmond District were approved because they were placed at a more ideal location, see 259 F.Supp.2d at 1012, the record contains no systematic comparison of the sites in question. Similarly, while the record also contains photo simulations of the proposed MetroPCS site (ER 31 Exh. 1), there are no similar photographs of competing facilities in the area. In short, while it is undisputed that there are other wireless facilities in the same neighborhood, there appears to have been no detailed inquiry into the similarity of these existing facilities to the proposed MetroPCS facility in terms of “structure, placement or cumulative impact.” See again Penn Township, 196 F.3d at 480 n. 8 (internal quotation marks omitted).
Given the foregoing, MetroPCS has presented sufficient evidence to create an issue of fact as to the discrimination claim. Since there is no conclusive evidence as to how MetroPCS‘s proposed facility compares to the existing sites of its competitors in terms of “structure, placement or cumulative impact,” substantial questions of fact remain as to whether the Board of Supervisors unreasonably discriminated against MetroPCS, and thus neither party is entitled to judgment as a matter of law.6
D. Prohibition Claim
Section 332 of the TCA provides that “[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or any instrumentality thereof—... (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”
In the proceedings below, the district court held that the City‘s decision did not amount to a “general ban” on wireless services, but that material questions of fact remain as to whether the denial of MetroPCS‘s CUP application perpetuates a “significant gap” in MetroPCS‘s coverage. 259 F.Supp.2d at 1015. We find the district court‘s reasoning persuasive, and we affirm all aspects of its holding as to this claim.
1. General Ban
A city-wide general ban on wireless services would certainly constitute an impermissible prohibition of wireless services under the TCA. In fact, this is the only circumstance under which the Fourth Circuit will find an impermissible prohibition under the statute. See AT & T Wireless, 155 F.3d at 428 (holding that only “blanket prohibitions” and “general bans or policies” affecting all wireless providers count as effective prohibition of wireless services under the TCA). Under this rule, which is based on a strict plain meaning analysis, individual zoning decisions or persistent coverage gaps can never constitute a prohibition under the statute—courts must ask only whether local governments have (effectively) banned wireless services altogether. Id. The City asks us to adopt the Fourth Circuit‘s interpretation as well, noting that the House Conference Committee‘s Report on the TCA seems to anticipate a narrow, bare-bones approach: “It is the intent of this section that bans or policies that have the effect of banning personal wireless services or facilities not be allowed and that decisions be made on a case-by-case basis.” H.R. Conf. Rep. No. 104-458, at 208 (1996).
However, for a variety of reasons, we decline to adopt the Fourth Circuit rule on this point. The language of the TCA, while sparse, does not dictate such a narrow interpretation even under a plain meaning approach. As the First Circuit has observed, given the current structure of the wireless services market, “[t]he fact that some carrier provides some service to some consumers does not in itself mean that the town has not effectively prohibited services to other consumers.” Second
Turning briefly to the merits, the record offers no support for MetroPCS‘s assertion that the City has imposed a “general ban” on wireless services, against new providers or anyone else. Aside from the fact that it would be extremely dubious to infer a general ban from a single CUP denial, the record reveals that the City has been receptive to wireless providers in general and MetroPCS in particular. It is undisputed that the City has authorized the installation of some 2,000 antennas at about 450 sites around the city, including 30 MetroPCS sites. This undercuts any assertion that the City has placed a general ban on new market entrants. The district court made virtually identical observations in its own finding that no general ban exists, 259 F.Supp.2d at 1013, and we uphold this ruling as entirely correct.
2. Service Gap
Several circuits have held that, even in the absence of a “general ban” on wireless services, a locality can run afoul of the TCA‘s “effective prohibition” clause if it prevents a wireless provider from closing a “significant gap” in service coverage. This inquiry generally involves a two-pronged analysis requiring (1) the showing of a “significant gap” in service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations. Currently there is a clear circuit split as to what constitutes a “significant gap” in coverage, and the Ninth Circuit has yet to rule on the issue.7
(a). Definition of “Significant Gap”
The test employed by the Second and Third Circuits holds that a “significant gap” in service exists only if no provider is able to serve the “gap” area in question. See Omnipoint, 331 F.3d at 398; Unity Township, 282 F.3d at 265; Penn Township, 196 F.3d at 478–80; Willoth, 176 F.3d at 643. One district court in the Ninth Circuit has also adopted this test. El Cajon, 83 F.Supp.2d at 1167. This test is sometimes referred to as the “one provider” rule since, if any single provider offers coverage in a given area, localities may preclude other providers from entering the area (as long as the preclusion is a valid, nondiscriminatory zoning decision that satisfies the other provisions of the TCA).
This rule has been touted as proceeding from the consumer‘s perspective rather than the individual service provider‘s perspective, which the Third Circuit argues is more in keeping with the regulatory goals of the TCA—as long as some provider offers service in the area, consumers will be adequately served and the TCA‘s goal of establishing nationwide wireless service will be achieved. See Omnipoint, 331 F.3d at 397–98; Unity Township, 282 F.3d at 265. Under this view, the TCA protects only the individual user‘s ability to receive service from one provider or another; it does not protect each service provider‘s ability to maintain full coverage within a
The First Circuit has recently rejected the “one provider” approach and held that a local regulation creates a “significant gap” in service (and thus effectively prohibits wireless services) if the provider in question is prevented from filling a significant gap in its own service network. See Second Generation Props., 313 F.3d at 631–33. This approach formally takes the perspective of the individual service provider in assessing coverage gaps, but, as the Second Generation Properties court persuasively explains, this approach actually better serves both individual consumers and the policy goals of the TCA.8 The Second Generation Properties court notes that the TCA “aims to secure lower prices and better service for consumers by opening all telecommunications markets to competition.” Id. at 631 (citing H.R. Conf. Rep. No. 104-458, at 113 (1996)). The court then warns against the dysfunctional implications of the Second and Third Circuits’ “one provider rule“:
A flat “any service equals no effective prohibition” rule would say that a town could refuse permits to build the towers necessary to solve any number of different coverage problems.... Such a rule would be highly problematic because it does not further the interests of the individual consumer. To use an example from this case, it is of little comfort to the customer who uses AT & T Wireless (or Voicestream, Verizon, Sprint, or Nextel) who cannot get service along the significant geographic gap which may exist along Route 128 that a Cingular Wireless customer does get some service in that gap.... The result [of such a rule] would be a crazy patchwork quilt of intermittent coverage. That quilt might have the effect of driving the industry toward a single carrier. When Congress enacted legislation to promote the construction of a nationwide cellular network, such a consequence was not, we think, the intended result.
Id. at 633 (footnote omitted). In short, the First Circuit‘s multiple provider rule better facilitates the robust competition which Congress sought to encourage with the TCA, and it better accommodates the current state of the wireless services market. The district court also found these arguments persuasive, since it formally adopted the First Circuit rule in its decision below. 259 F.Supp.2d at 1013–14.
For its part, MetroPCS does not object to the district court‘s adoption of the First Circuit “multiple provider rule” (in fact MetroPCS and its Amici argue strenuously in favor of the First Circuit‘s approach), though it argues that the City‘s zoning “criteria,” which allow for CUP denials based on findings that a given facility is “not necessary” for the community, are “impossible for any non-incumbent carrier to meet” and thus constitute an effective prohibition of wireless services. Once again, the large number of permits already granted by the City—to providers new and old—belies this assertion.
Additionally, we emphasize that MetroPCS‘s concerns regarding zoning decisions based on “necessity” can be accommodated by the First Circuit‘s version of the significant gap test. Under this rule,
Having considered both the avowed policy goals of the TCA and the practical implications of the various constructional options, we elect to follow the district court‘s lead and formally adopt the First Circuit‘s rule that a significant gap in service (and thus an effective prohibition of service) exists whenever a provider is prevented from filling a significant gap in its own service coverage. With the correct legal standard thus clarified, we now turn to the merits of MetroPCS‘s prohibition claim.
In applying the First Circuit‘s provider-focused notion of “significant gap,” the district court denied both parties summary judgment, holding that significant questions of fact still exist as to whether the Board‘s decision actually perpetuates a significant gap in MetroPCS‘s coverage. This conclusion is amply supported by the existing record and, therefore, we affirm the district court‘s ruling on this issue. Both parties confidently assert that the current record unequivocally supports their respective positions. But to the contrary, the record is replete with contradictory allegations as to MetroPCS‘s need for the Geary site. Compare Statements of Suki McCoy, SER at 223–36 (stating that MetroPCS has adequate coverage in the Richmond District); Statements of Martin Signithaler, SER at 134–36 (stating that the Geary site would not improve MetroPCS‘s effective coverage); MetroPCS Marketing Materials, SER 225, 234 (advertising that MetroPCS has full coverage around the Geary site), with Statements of MetroPCS Technological Expert, SER at 200–02 (stating that MetroPCS coverage is not adequate without the Geary site); Declaration of Lisa Nahmanson, ER 32 (stating that MetroPCS coverage is insufficient without the Geary site); Testimony of Deborah Stein, SER 191–200 (same); Declaration of John Schwartz, ER 49 (challenging basis of City‘s contention that existing MetroPCS service is adequate).
In urging us to grant it summary judgment on this issue, the City cites a bevy of cases that, collectively, are meant to demonstrate that “[t]he TCA does not assure every wireless carrier a right to seamless coverage in every area it serves,” and that the inability to cover a “a few blocks in a large city” is, as a matter of law, not a “significant gap.” While we recognize that the TCA does not guarantee wireless service providers coverage free of small “dead spots,”10 the existing case law amply demonstrates that “significant gap” determinations are extremely fact-specific inquiries that defy any bright-line legal rule. Moreover, the City‘s assertion as to the size of MetroPCS‘s alleged service gap merely assumes the very fact in issue here—the
Given the conflicting contents of the record, there is simply no basis for granting either party summary judgment on this issue. We affirm the district court‘s ruling to that effect.
(b) Least Intrusive Means
Under all existing versions of the “significant gap” test, once a wireless service provider has demonstrated that the requisite significant gap in coverage exists, it must then make some showing as to the intrusiveness or necessity of its proposed means of closing that gap. Here again, the circuits are split as to the required showing.
The Second and Third Circuits require the provider to show that “the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve.” Penn Township, 196 F.3d at 480 (emphasis added); see also Omnipoint, 331 F.3d at 398; Unity Township, 282 F.3d at 266; Willoth, 176 F.3d at 643. The First and Seventh Circuits, by contrast, require a showing that there are “no alternative sites which would solve the problem.” Second Generation Props., 313 F.3d at 635; see also St. Croix County, 342 F.3d at 834–35 (adopting the First Circuit test and requiring providers to demonstrate that there are no “viable alternatives“) (citing Second Generation Properties).11
After concluding that material issues of fact remain as to the presence (or absence) of a significant gap in MetroPCS‘s coverage, the district court attempted to reconcile competing interpretations of the intrusiveness inquiry by creating its own “fact-based test that requires the provider to demonstrate that its proposed solution is the most acceptable option for the community in question.” 259 F.Supp.2d at 1015 (emphasis added).
Since there is no controlling legal authority on the issue, our choice of rule must ultimately come down to policy considerations. The district court‘s “most acceptable option” rubric seems a hopelessly subjective standard, and one wonders how a proposed site could ever be proven “the most acceptable” if a zoning proposal with respect to it had already been denied by local authorities. On the other hand, the First and Seventh Circuit requirement that a provider demonstrate that its proposed facility is the only viable option seems too exacting. As the case at bar demonstrates, there may be several viable means of closing a major service gap, (see MetroPCS Alternative Site Analysis, SER 26–35), and in such a situation, this “only viable option” rule would either preclude the construction of any facility (since no single site is the “only viable” alternative) or require providers to endure repeated denials by local authorities until only one feasible alternative remained. This seems a poor use of time and resources for both providers and local governments alike.
The Second and Third Circuit “least intrusive” standard, by contrast, allows for a
For these reasons, we now adopt the “least intrusive means” standard and instruct the district court to apply this rule as necessary in its consideration of the prohibition issue on remand.
E. Preemption Claim
One additional note is in order that bears, albeit indirectly, on MetroPCS‘s discrimination and prohibition claims. MetroPCS vigorously asserts, as separate claims independent of the specific provisions of the TCA, that the Board‘s denial of its CUP based on an appraisal of community “necessity” violates the FCC‘s exclusive licensing authority over wireless providers and is preempted by the TCA‘s statutory scheme.
In support of this claim MetroPCS points out that the FCC has identified “an immediate need for cellular service” and has established the goal of “providing for up to two cellular systems per market.” In the Matter of An Inquiry Into the Use of Bands 825-845 MHz and 870–890 MHz for Cellular Communications Systems, Memorandum Opinion and Order on Reconsideration, 89 F.C.C.2d 58, at ¶ 82, 1982 WL 190439 (1982). The FCC further sought to preclude state regulation of the number of service providers in a given market: “[W]e have already determined ‘need’ on a nationwide basis and have preempted the states from denying state certification based on the number of existing carriers in the market or the capacity of existing carriers to handle the demand for mobile services.” Id. Congress similarly has declared that “no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service,”
Yet while MetroPCS does convincingly demonstrate that the FCC has exclusive authority to issue licenses and regulate the wireless services market—a point which appears to be undisputed between the parties—the TCA itself fully accommodates these preemption concerns in its anti-discrimination and anti-prohibition provisions. The TCA‘s statutory scheme ensures that the bandwidth usage and competitive market dynamics sought by Congress and the FCC will be realized, while at the same time allowing cities to prevent certain areas from being overburdened by a proliferation of wireless facilities. MetroPCS‘s vigorous per se arguments against necessity-based zoning decisions misconstrue the delicate regulatory balance struck by the Act.
First of all, a zoning decision to prohibit construction of a wireless facility at a specific location—whether based on necessity or not—does not implicate the FCC‘s ability to regulate the number of wireless providers in a given market. Federal supremacy and the FCC‘s exclusive power to regulate wireless markets are fully vindicated in the TCA‘s anti-discrimination and anti-prohibition provisions, especially under the First Circuit‘s “multiple provider” interpretation of the “prohibition” clause. As discussed above, whatever a locality‘s
Essentially, the TCA represents a congressional judgment that local zoning decisions harmless to the FCC‘s greater regulatory scheme—and only those proven to be harmless—should be allowed to stand. As discussed earlier, the TCA “does not affect or encroach upon the substantive standards to be applied under established principles of state and local law,” Oyster Bay, 166 F.3d at 494 (internal quotation marks omitted) (emphasis added), and it “does not create a substantive federal limitation upon local land use regulatory power,” Todd, 244 F.3d at 58; see also St. Croix County, 342 F.3d at 830 (same rule) (quoting Todd). MetroPCS‘s preemption and supremacy claims are thus misdirected. See, e.g., El Cajon, 83 F.Supp.2d at 1168–69 (rejecting a federal preemption claim in a
F. Environmental Concerns
The last claim in this case is easily resolved. The TCA provides that localities may not base zoning decisions on concerns over radio frequency emissions if the proposed wireless facility complies with FCC emissions requirements:
No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC]‘s regulations concerning such emissions.
MetroPCS argues that the Board did base its decision on environmental considerations. In support of this claim it notes that “opponents of MetroPCS‘s application made boisterous presentations before the Board regarding RF emissions, accompanied by argument, badges and t-shirts complaining about RF emissions.” MetroPCS also claims that “the Board‘s denial motion expressly states that it was based on ‘all of the public comments made in support of and opposed to the appeal.’ ” Finally, MetroPCS notes that the Board‘s decision stated the proposed facility would “not promote the health, safety and welfare of the city.”
These observations are of little relevance to the issue here. As the district court correctly points out, the party actually challenging the MetroPCS CUP application before the Board (Mr. Blum) took pains to clarify that his appeal was not based on environmental concerns. Additionally, the Board‘s formal decision against MetroPCS did not state that it was “based on” all public comments made in support of and opposed to the appeal.
Most crucially, the Board‘s written decision does not once mention RF emissions as a motivation for denying MetroPCS‘s CUP application. Broadly stating (presumably as a recitation of the City‘s Policy Principles) that the proposed facility “will not promote” public health, safety and welfare is not remotely equivalent to basing a zoning decision on a fear of RF emissions. Given the foregoing, the one case cited by MetroPCS on this issue, Telespectrum, Inc. v. Pub. Serv. Comm‘n, 227 F.3d 414 (6th Cir.2000), which involved a straightforward application of the TCA‘s RF provision, is inapposite. The district court was correct in granting the City summary judgment as to this claim, and we affirm that ruling.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s ruling that the Board‘s decision was properly “in writing,” supported by substantial evidence and not impermissibly based on concerns over radio frequency emissions under the TCA. We also AFFIRM the district court‘s ruling that material questions of fact remain as to whether the Board‘s decision effectively prohibited the provision of personal wireless services under the TCA. Finally, we REVERSE the district court‘s determination that the Board‘s decision did not, as a matter of law, unreasonably discriminate among providers of functionally equivalent services within the meaning of the TCA, and we REMAND this case for further proceedings consistent with this opinion.
GRABER, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority that genuine issues of material fact remain with respect to whether the Board of Supervisors’ (Board) denial of MetroPCS‘s application for a Conditional Use Permit (CUP) to construct wireless facilities violated the anti-discrimination and anti-prohibition provisions of the Telecommunications Act of 1996 (TCA),
According to the majority, a reviewing court‘s analysis of the reasons given by a zoning authority for denying a request to construct wireless facilities begins and ends with determining whether those reasons are authorized by local regulations and supported by evidence. Relying on the Second Circuit‘s decision in Cellular Telephone Co. v. Town of Oyster Bay, the majority concludes that “the TCA ‘does not affect or encroach upon the substantive standards to be applied under established principles of state and local law.’ ” Maj. op. at 724 (emphasis in majority opinion) (quoting Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999)). That is, the reasons stated by a zoning authority in denying a request for wireless facilities are irrelevant under the majority‘s analysis. Accordingly, the majority concludes that the Board was entitled to reject MetroPCS‘s application for a
The majority overstates the extent of the TCA‘s indifference to the substantive content of local regulations when those regulations are applied to zoning decisions regarding the “placement, construction, and modification of personal wireless service facilities.”
Similarly, “the anti-discrimination and anti-prohibition provisions of the TCA, [
For example, the Board could not deny MetroPCS‘s application solely on the ground that the availability of wireless services in the Geary neighborhood may lead to increased wireless telephone usage among automobile drivers in that neighborhood, with a commensurate increase in traffic accidents. Traffic safety is certainly a legitimate zoning concern, and the Board could easily produce substantial evidence to support a correlation between wireless telephone usage among drivers and traffic accidents. Nonetheless, the
The Board‘s necessity rationale presents the same problem. Whatever its consistency with local zoning ordinances, the denial of MetroPCS‘s request on the ground that the Geary neighborhood is already served by at least one other wireless service provider is irreconcilable with
Here, the Board‘s necessity determination results in precisely the type of unreasonable discrimination that the TCA seeks to prevent. It protects existing service providers against potential competitors and effectively bars all new market entrants from the area in question. Because the Board‘s necessity determination is inherently and unreasonably discriminatory, it cannot serve as a valid, legally relevant basis for rejecting MetroPCS‘s application for a CUP.
The majority misunderstands my point when it claims that I argue “that any zoning regulation—or application of such a regulation—based on considerations of community ‘necessity’ by its terms discriminates against new providers.” Maj. op. at 724. Instead, I argue much more simply, and much more narrowly, that a local agency‘s fact-finding about “necessity” must respect the statutorily required definition of what “necessity” is.
Neither the majority nor the district court looked further than the Board‘s “necessity” rationale in holding that substantial evidence supported the Board‘s decision as a whole. Because “[a] significant number of community members that opposed the installation indicated that they had adequate wireless services [from other providers] in their district,” the district court concluded that it “need not reach the question of whether there is substantial evidence supporting the Board‘s determination that MetroPCS‘s installation would cause visual blight, or that MetroPCS did not need the antennas for its own service.” MetroPCS, Inc. v. City & County of San Francisco, 259 F.Supp.2d 1004, 1010–11 & n. 6 (N.D.Cal.2003). For the reasons discussed above, I disagree with the majority that the Board‘s decision can rest on that ground alone, even if that ground is supported by substantial evidence. Accordingly, on remand, I would instruct the district court to consider whether substantial evidence supports the legally relevant and permissible reasons that the Board gave for denying MetroPCS‘s request to construct wireless facilities.
In all other respects, I concur in the majority‘s opinion.
Notes
(7) Preservation of local zoning authority
(A) General Authority
Except as provided in this paragraph, nothing in this chapter shall limit or af-
(B) Limitations
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services
. . . .
(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.
(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission‘s regulations concerning such emissions.
As discussed above, the Act specifically preserves traditional local zoning authority over siting decisions, and it has been consistently held that the TCA does not intrude upon the substantive content of local zoning rules. Oyster Bay, 166 F.3d at 494. In other words, far from prohibiting zoning decisions based on redundancy or community “necessity,” the TCA itself appears to be totally agnostic on this issue. Moreover, a purely aesthetic determination that a certain neighborhood is blighted with too many wireless antennas—which is specifically permitted in the prevailing case law and anticipated in the legislative history of the TCA—may similarly disadvantage new market entrants who wish to add new facilities in the neighborhood.
As for the case at bar, the claim of discrimination against new providers also rings a bit hollow coming from MetroPCS, since the record shows that it has been allowed to construct some 30 sites in the city of San Francisco, including 18 facilities under discretionary CUPs. While this does not necessarily establish that MetroPCS has been allowed to realize seamless coverage in the city, it certainly does refute any claim of discrimination against new providers as such.
More to the point, Congress has already considered the competing interests of local zoning authorities and wireless providers (both new and old), and has constructed a statutory scheme to accommodate both. As will be discussed more fully below, while the TCA is agnostic as to the substantive content