Gte Mobilnet of Cal. Ltd. v. City of San Francisco, C 05-04056 SI.

Page 1097

440 F.Supp.2d 1097

GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

No. C 05-04056 SI.

United States District Court, N.D. California.

July 19, 2006.

COPYRIGHT MATERIAL OMITTED

Diana J. Graves, Ronald E. Vanbuskirk, Pillsbury Winthrop Shaw Pittman LLP, James A. Heard, Mackenzie & Albritton LLP, San Francisco, CA, for Plaintiff.

William Kirk Sanders, City Attorney's Office, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDMENT

ILLSTON, District Judge.

On July 7, 2006, the Court heard argument on plaintiffs motion for partial summary judgment and defendant's motion for partial summary judgment. Having considered the arguments presented and the papers submitted, and for good cause appearing, the Court hereby GRANTS IN PART defendant's motion and DENIES plaintiffs motion.

BACKGROUND

Plaintiff GTE Mobilnet of California Limited Partnership dba Verizon Wireless ("Verizon") is a company licensed by the Federal Communications Commission to build and operate wireless cellular transmission stations to serve Northern California. In an effort to improve its coverage in the city of San Francisco, Verizon sought a permit from the city of San Francisco to install wireless equipment on public rights-of-way throughout the city. This equipment, antennas measuring approximately two feet by two feet and small utility boxes, would be installed on existing telephone and utility poles.

Both state and local law regulates the ability of telephone corporations to utilize public rights-of-way for their equipment. To promote the provision of telecommunications services, state law grants telephone corporations a broad right of access to public rights-of-way. California Public Utilities Code § 7901 provides this right:

Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.

Cal. Pub. Util.Code § 7901. Consistent with this broad state-created right, San Francisco exempts telephone corporations from the usual requirement that a company obtain a "franchise" before it may operate utility facilities in the public rights-of-way. See San Francisco Admin. Code § 11.4(c). Instead, San Francisco only requires telephone corporations to obtain utility conditions permits ("UCPs") before they may use the public rights-of-way. The sole prerequisite for obtaining a UCP is proof that the company has authorization from the California Public Utilities Commission ("CPUC") to occupy and use the public rights-of-way. See San Francisco Admin. Code § 11.9. Generally, this proof takes the form of a certificate of public convenience and necessity ("CPCN") issued by the CPUC, although the regulation also envisions that other forms of proof may be provided. Id. ("Persons intending to construct, install, or maintain Telephone Lines to provide Telecommunications Services shall prove their legal right to occupy and use the Public Rights-of-Way by providing the Department of Public Works a current copy of their [CPCN] issued by the CPUC, or otherwise demonstrate that they have been authorized to occupy the Public Rights-of-Way by the CPUC.").

On April 14, 2005, Verizon Wireless submitted an application for a UCP to San Francisco through its agent, NextG Networks. In the application, however, Verizon did not include a copy of its CPCN, nor did it represent that it had a CPCN. Instead, the application stated that Verizon had "registered" with the CPUC. Verizon took this position because the CPUC no longer issues CPCNs to wireless carries. The CPUC stopped doing so because federal law preempted its authority to regulate the entry of wireless carriers.

Based on Verizon's failure to provide a CPCN, San Francisco denied its UCP request. Instead, the City informed Verizon that it needed to obtain an encroachment permit for every wireless box that it wanted to install in San Francisco. Verizon appealed this decision to the San Francisco Board of Appeals. There, for the first time Verizon argued that a CPCN it received in 1984 was still valid.¹ It admitted, however, that its UCP application was not based on this CPCN. AR at 173 ("The application does not reference the CPCN."). Based on its determination that Verizon's CPCN was no longer valid, the Board denied Verizon's appeal and later denied its request for rehearing. AR 02 ("[The Department of Public Works] correctly determined that appellant did not have a valid and existing [CPCN] ... and therefore did not meet the requirements for a[UCP] under § 11.9 of the San Francisco Administrative Code.").

On October 7, 2005, Verizon filed this action, claiming that San Francisco's decision violated the federal Telecommunications Act, the California Public Utilities Code, and San Francisco's own administrative regulations. Now before the Court are cross motions for summary judgment on Verizon's first and seventh causes of action. The Court agrees with San Francisco that Verizon did not meet the requirements of § 11.9 of the San Francisco Administrative Code. It finds that an issue of fact remains, however, regarding whether San Francisco's actions interfere with Verizon's rights under § 7901.²

LEGAL STANDARD

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the nonmoving party's case. See id. at 325, 106 S.Ct. 2548.

The burden then shifts to the non-moving party to "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence... will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Id at 255, 106 S.Ct. 2505. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when she] is ruling on a motion for summary judgment." Id.

DISCUSSION

Both Verizon and San Francisco seek summary judgment on Verizon's first and seventh claims for relief. Verizon's first claim alleges that San Francisco's decision to deny Verizon's application for a UCP violated the Telecommunications Act of 1996. Verizon's seventh claim seeks a writ of mandamus on the ground that San Francisco has not complied with California Public Utilities Code § 7901 or San Francisco Administrate Code § 11.9.

I. Telecommunications Act of 1996

Plaintiff's first claim alleges that San Francisco's action violates section 332(c)(7) of the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7). That section, entitled "Preservation of local zoning authority," provides:

(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.

47 U.S.C. § 332(c)(7)(B)(i), (iii). Verizon argues that the Board's denial of its permit application was not supported by "substantial evidence." San Francisco contests this assertion, and also argues that § 332(c)(7) is not applicable to Verizon's application for a UCP.

A. Applicability of 47 U.S.C. § 332(c)(7)

As an initial matter, San Francisco argues that § 332(c)(7) does not apply to the Board's decision in this case. According to San Francisco, § 332(c)(7) applies only to "zoning" decisions, not to administrative matters such as the decision to issue a UCP. San Francisco argues that the title of § 332(c)(7), "preservation of local zoning authority," supports its position. It also argues that the section does not fit comfortably over the decision to deny a UCP application, because the section anticipates site-specific decisions. UCPs, in contrast, provide wireless companies with a broad right to install telecommunications equipment on the public rights of way throughout the city. See San Francisco Administrative Code §...