SPRINT TELEPHONY PCS, L.P., a Delaware limited partnership, Plaintiff-Appellant-Cross-Appellee, and Pacific Bell Wireless LLC, a Nevada limited liability company, dba Cingular Wireless, Plaintiff, v. COUNTY OF SAN DIEGO; Greg Cox, in his capacity as supervisor of the County of San Diego; Dianne Jacob, in her capacity as supervisor of the County of San Diego; Pam Slater, in her capacity as supervisor of the County of San Diego; Ron Roberts, in his capacity as supervisor of the County of San Diego; Bill Horn, in his capacity as supervisor of the County of San Diego, Defendants-Appellees-Cross-Appellants.
Nos. 05-56076, 05-56435
United States Court of Appeals, Ninth Circuit
Argued and Submitted Oct. 26, 2006. Filed March 13, 2007.
479 F.3d 1061
Before MYRON H. BRIGHT, TASHIMA, and BEA, Circuit Judges. BRIGHT, Circuit Judge.
AFFIRMED in part, REVERSED in part, and REMANDED. The parties shall bear their own costs on appeal.
Daniel T. Pascucci, Andrew D. Skale, and Nathan R. Hamler, Buchanan Ingersoll LLP, San Diego, CA, for plaintiff-appellant-cross-appellee.
Thomas D. Bunton and John Sansome, County of San Diego Office of County Counsel, San Diego, CA, for defendants-appellees-cross-appellants.
Edward L. Donohue, argued, Donohue & Blue PLC, Alexandria, VA, for Amici Curiae T Mobile USA, Inc. and PCIA, the Wireless Infrastructure Association.
Sprint Telephony PCS sought an injunction in the district court to prevent San Diego County (“the County”) from enforcing its Wireless Telecommunications Facilities zoning ordinance (“WTO”). The district court granted a permanent injunction, agreeing with Sprint that the WTO’s regulation of wireless facility placement violated
I.
Today’s wireless age began when Guglielmo Marconi developed a way for ships to communicate over radio waves in 1895. See PETER W. HUBER ET AL., FEDERAL TELECOMMUNICATIONS LAW 10, 861 (2d ed.1999) (hereinafter “Huber”). Mobile technology in the United States initially relied on single-cell transmission, which severely limited the number of subscribers who could utilize the system. It was not until December 1947 that Bell Labs scientist D.H. Ring conceptualized cellular telecommunications in an internal technical memorandum. See 1946: First Mobile Telephone Call, available at http://www.corp.att.com/attlabs/reputation/timeline/46mobile.html (last visited Mar. 5, 2007). Ring’s system employed multiple transmission sites and re-used frequencies, over
A. The Development of Cellular Technology
Nationwide wireless capacity grew as providers adopted cellular technology and as the FCC gradually expanded the radio spectrum available to mobile telecommunications. See id. at 903-08; see also FCC, Cellular Services: Band Plan, available at http://wireless.fcc.gov/services/index.htm?job=service_bandplan & id=cellular (last visited Mar. 5, 2007). In June 1985, when the Cellular Telecommunication Industry Association (“CTIA”) began its semi-annual survey of the industry, the CTIA reported 203,600 domestic cellular subscribers. See CTIA, Background on CTIA’s Semi-Annual Wireless Industry Survey, available at http://files.ctia.org/pdf/CTIAMidYear2006Survey.pdf (last visited Mar. 5, 2007) (“CTIA Survey”). By June 2006, as we prepared to hear this appeal, that number had grown to 219,420,457. Id.
The corresponding infrastructure necessary to support today’s cellular technology is extensive. Cellular telecommunications takes its name from the network of hexagonal cells, which “resemble honeycombs,” blanketing the coverage area. See Jeffrey Berger, Efficient Wireless Tower Sitting: An Alternative to Section 332(c)(7) of the Telecommunications Act of 1996, 23 TEMP. ENVTL. L. & TECH. J. 83, 87 (2004). Each cell contains an antenna tower, which emits and receives signals to and from the subscribers within its geographic area. Id. As Ring originally proposed, users are seamlessly passed from tower to tower as they move within the system. Id. Approximately 200,000 cellular sites currently support more than 200 million subscribers nationwide. See CTIA Survey.
The growing demand for cellular service requires the construction of additional cellular sites, which has met with opposition in some communities. See Berger at 86 (describing the opposition to cellular towers). Congress addressed growing concern that the lack of a national wireless policy inhibited growth of the industry in provisions of the
B. The Telecommunications Act of 1996
Congress reaffirmed its commitment to nationwide telecommunications and cellular service when it passed the TCA in 1996. It announced its intent “to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.” 110 Stat. at 56 (1996). The TCA, which also amended the
§ 253 Removal of Barriers to Entry
(a) In general
No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any inter-state or intrastate telecommunications service.
(b) State regulatory authority
Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.
(c) State and local government authority
Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.
(d) Preemption
If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates sub-section (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.
(e) Commercial mobile service providers
Nothing in this section shall affect the application of section 332(c)(3) of this title to commercial mobile service providers.
§ 101, 110 Stat. at 70-71 (codified at
In addition to
(7) Preservation of local zoning authority
(A) General authority
Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(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.
(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
(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 Commission’s regulations concerning such emissions.
(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this sub-paragraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.
The addition of
C. The County’s Enactment of the Wireless Telecommunications Facilities Ordinance
Against the backdrop of the TCA, the County, in April 2003, enacted Ordinance Number 9549, “An Ordinance Amending the San Diego Zoning Ordinance Relating to Wireless Telecommunications Facilities.” The WTO supplements the County’s general zoning ordinance (hereinafter “Zoning Ordinance”) and creates a four-tier system for the granting of wireless facility permits. According to the WTO a provider, such as Sprint, must obtain one of four conditional use permits before constructing a wireless facility: (1) Administrative Site Plan Permit; (2) Site Plan with Community Review Permit; (3) Minor Use Permit; or (4) Major Use Permit. WTO § 6985. Each class of permit defines the wireless facility projects that fall within its scope, based on factors including the placement, visibility, and height of the proposed structure. Id.
We briefly summarize the permit application requirements of the WTO. A permit applicant must: (1) identify the geographic area served by the site, list all of the applicant’s other sites in the area, and describe why the site is necessary to the applicant’s network; (2) submit a “visual impact analysis” that describes the “maximum silhouette, viewshed analysis, color and finish palette and proposed screening,” and includes simulated photographs of the site; and (3) create a narrative detailing the site’s height, maintenance, noise emissions, alternative placement in a preferred site (if the site does not fall within one of the geographic areas preferred by the County for wireless facilities), landscaping plan, fire service plan, hazardous materials use, maintenance personnel parking plan (if the site is located in a public right of way), “a letter stating the applicant’s willingness to allow other carriers to co-locate on their facilities whenever technically and economically feasible and aesthetically desirable,” and the “lease area of the proposed facility on the plot plan.” See WTO §§ 6984, 6986(B). The WTO also discusses the general and design regulations applicable to wireless facilities, so that an applicant may design a compliant facility. See WTO §§ 6985(C), 6987.
In addition to the provisions of the WTO, wireless providers that apply for use permits are subject to other requirements contained in the Zoning Ordinance. The Zoning Ordinance requires applicants to submit: (1) a list of “all persons having a interest in the application as well as the names of all persons having any ownership interest in the property involved;” (2) complete plans for the site; and (3) an “appropriate environmental impact review document.” See Zoning Ordinance § 7345(b).
Following submission of an application, the review process, established by the Zoning Ordinance and the provisions added by the WTO, reserves to the County’s permitting authority significant discretion. Before a use permit is granted, the authority must find that “the location, size, design, and operating characteristics of the proposed use will be compatible with adjacent uses, residences, or structures.” Zoning Ordinance § 7358(a). The Zoning Ordinance lists items of “consideration,” but leaves the authority to consider “any other relevant impact of the proposed use.” Id. § 7358(a)(6). Additionally, the WTO requires that the decision maker must determine that the proposed facility is appropriately “camouflaged,” “consistent with community character,” and designed to have minimum “visual impact.” See WTO §§ 6985, 6987. Finally, the Zoning Ordinance, inter alia, allows the County’s
II.
Sprint and its co-plaintiff in the district court, Pacific Bell Wireless, LLC, dba Cingular Wireless, brought a prima facie challenge to the WTO, arguing that it was preempted by
The district court first addressed the applicability of
The County next filed a Federal Rule of Civil Procedure 12(c) motion for judgment on the pleadings. It argued that
Sprint and the County filed motions for summary judgment. Sprint argued that, as a matter of law, the WTO violated
III.
In general we review a summary judgment order granting a permanent injunction for abuse of discretion. Washington State Republican Party v. Wash., 460 F.3d 1108, 1115 (9th Cir.2006). “However, ‘any determination underlying the grant of an injunction [is reviewed] by the standard that applies to that determination.’ ” Id. (quoting Ting v. AT & T, 319 F.3d 1126, 1134-35 (9th Cir.2003)). Thus, we review the district court’s findings of fact for clear error and its determinations of law—including the determination that a local statute is preempted by federal law—de novo. See Ting, 319 F.3d at 1135; see also Olympic Pipe Line Co. v. City of Seattle, 437 F.3d 872, 877 & n. 12 (9th Cir.2006); Qwest Communications Inc. v. City of Berkeley, 433 F.3d 1253, 1256 (9th Cir.2006) (hereinafter “Berkeley”) (reviewing de novo district court’s decision that
IV.
This appeal presents three related questions of law. The threshold question is whether Sprint may seek a permanent injunction against the enforcement of the WTO under
A. The Availability of Injunctive Relief
The County first challenges the applicability of
1. Sprint’s Ability to Seek Injunctive Relief
As a threshold matter, we must consider whether Sprint has standing to challenge
We acknowledged in City of Auburn v. Qwest Corporation that the Supremacy Clause permits the TCA to preempt state and local statutes and regulations, though the court did not squarely address Qwest’s standing. See City of Auburn v. Qwest Corp., 260 F.3d 1160, 1175 (9th Cir.2001) (hereinafter “Auburn”) (observing that Supremacy Clause permits
The Sixth Circuit has expressed concern that standing under the Supremacy Clause is inappropriate, absent a private statutory right of action. See TCG Detroit v. City of Dearborn, 206 F.3d 618, 622 n. 1 (6th Cir.2000). The TCG Detroit court declined to approve a case in the District Court for the Western District of Texas that, like Auburn and the district court in this case, proceeded under the Supremacy Clause despite finding a lack of a private right under the TCA. See AT & T Communications v. City of Austin, 975 F.Supp. 928, 936 (W.D.Tex.1997), vacated as moot by, 235 F.3d 241 (5th Cir.2000). The Sixth Circuit did not disclose the precise source of its discomfort, but a footnote raised the concern that
2. The Applicability of § 253(a) to Zoning Ordinances Regulating Wireless Telecommunications Facilities
The District Court twice held that
§ 253(a) and § 332(c)(7)
The distinction between the application of
Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this sub-paragraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.
b. The Novel Application of § 253(a)
The use of
The lack of cases challenging zoning ordinances is unsurprising because of the high burden faced by a party asserting a facial challenge. See Salerno, 481 U.S. at 745 (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). Indeed, we have observed that it may be particularly difficult to mount a facial challenge against a zoning ordinance:
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.
c. Statutory Interpretation of the TCA
To decide whether
Here, the County argues that
The conference agreement creates a new section 704 [
U.S.Code § 332(c)(7) ] which prevents Commission preemption of local and State land use decisions and preserves the authority of State and local governments over zoning and land use matters except in the limited circumstances set forth in the conference agreement.
H.R. Conf. Rep. No. 104-458, at 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222.
i. Plain Meaning of the TCA
The County’s insistence that any challenge to a local zoning ordinance be lodged under
Nevertheless, the County contends that applying
In the present litigation, however, we are asked to examine the general provisions of
Interpreting
The County argues that permitting a facial challenge to an entire ordinance under
Additionally, other provisions contained in
ii. Legislative History of the TCA
Because the plain language of
There is no indication, however, that Congress feared
For purposes of this appeal, the principal distinction between the two sections is
Thus, the legislative history of
B. Preemption of the WTO
We next consider whether the WTO is preempted by the TCA. The County argues that the additional requirements imposed by the WTO are consistent with general zoning principles and fall short of the conditions that caused our court to preempt the City of Auburn’s franchise ordinance. See Auburn, 260 F.3d at 1176. Sprint contends that the WTO is an “onerous” system of requirements that shares many of the restrictions that amounted to an effective prohibition on wireless service in Auburn. Sprint also argues that the WTO is not “competitively neutral” because it regulates wireless providers in a manner not applicable to all utility providers and likens the degree of regulation to that “usually reserved for landfills, cemeteries and power plants,” not utilities.
The district court gleaned a set of concerns from cases discussing preemption of local ordinances under
In Auburn we identified the factors considered by the district court in this case. See Auburn, 260 F.3d at 1175-76. Our concerns here are almost identical. The County’s WTO, on its face, supplements the Zoning Ordinance by adding submission requirements to an already voluminous list. See WTO § 6984. Those requirements are in addition to the open-ended discretion and threat of criminal penalties contained in the Zoning Ordinance. The WTO itself explicitly allows the decision maker to determine whether a facility is appropriately “camouflaged,” “consistent with community character,” and designed to have minimum “visual impact.” See WTO §§ 6985, 6987. We find the County’s retort—that the elements of the WTO challenged by Sprint are traditional facets of zoning that are unobjectionable for the simple reason that the WTO is a zoning ordinance rather than a franchise or public right-of-way ordinance—unconvincing. Though Auburn discussed a franchise ordinance, our concerns in this case are largely the same. We conclude that the WTO imposes a permitting structure and design requirements that presents barriers to wireless telecommunications within the County, and is therefore preempted by
C. Section 1983 damages and fees
Finally, we consider the availability of
Section 1983 “by itself does not protect anyone against anything,” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), and thus the question for us is whether
Two of our sister circuits have examined the legislative history of
The Eleventh Circuit has interpreted this history to suggest that
We are convinced that the legislative history demonstrates Congress did not intend to create a private right of action. Like the Tenth Circuit, we understand the Feinstein and Kempthorne amendment and the Gorton amendment to concern the venue of certain
V.
When Congress passed the TCA in 1996 it expressed its intent to remove barriers inhibiting the development of telecommunications service. Though the act did not “federalize telecommunications land use law,” Southwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir.2001), it established meaningful limits beyond which state and local governments may not inhibit telecommunications by preventing the construction of wireless communications facilities. Accordingly, we determine that local zoning ordinances regulating the construction and placement of wireless communications facilities are within the preemptive scope of
Our decision today does not reach the permissibility of the County’s general zoning ordinance, which was not litigated in this case. We AFFIRM the judgment of the district court.