Sprint Telephony Pcs, L.P. v. County of San Diego

543 F.3d 571

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, a division of the State of California; Greg Cox, in his capacity as a supervisor of the County of San Diego; Dianne Jacob, in her capacity as a supervisor of the County of San Diego; Pam Slater, in her capacity as a supervisor of the County of San Diego; Ron Roberts, in his capacity as a supervisor of the County of San Diego; Bill Horn, in his capacity as a supervisor of the County of San Diego, Defendants-Appellees/Cross-Appellants.

No. 05-56076.

No. 05-56435.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 24, 2008.

Filed September 11, 2008.

Daniel T. Pascucci and Nathan R. Hamler, Mintz Levin Cohn Ferris Glovsky and Popeo PC, San Diego, CA, for the plaintiff-appellant/cross-appellee.

Thomas D. Bunton, Senior Deputy County Counsel, County of San Diego, San Diego, CA, for the defendants-appellees-cross-appellants.

Andrew G. McBride and Joshua S. Turner, Wiley Rein LLP, Washington, DC; William K. Sanders, Deputy City Attorney, San Francisco, CA; Joseph Van Eaton, Miller & Van Eaton, P.L.L.C., Washington, DC; John J. Flynn III, Nossaman, Guthner, Knox & Elliott, LLP, Irvine, CA; T. Scott Thompson, Davis Wright Tremaine, LLP, Washington, DC; and Elaine Duncan and Jesus G. Roman, Verizon California, Inc., Thousand Oaks, CA, for amici curiae.

Appeals from the United States District Court for the Southern District of California; Barry Ted Moskowitz, District Judge, Presiding. D.C. No. CV-03-1398-BTM.

Before: ALEX KOZINSKI, Chief Judge, and ANDREW J. KLEINFELD, HAWKINS, A. WALLACE TASHIMA, SIDNEY R. THOMAS, BARRY G. SILVERMAN, SUSAN P. GRABER, RONALD M. GOULD, MARSHA S. BERZON, RICHARD C. TALLMAN, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge GRABER; Concurrence by Judge GOULD.

GRABER, Circuit Judge:

The Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (codified as amended in U.S.C. Titles 15, 18 & 47) ("the Act"), precludes state and local governments from enacting ordinances that prohibit or have the effect of prohibiting the provision of telecommunications services, including wireless services. In 2003, Defendant County of San Diego enacted its Wireless Telecommunications Facilities ordinance. San Diego County Ordinance No. 9549, § 1 (codified as San Diego County Zoning Ord. §§ 6980-6991, 7352 ("the Ordinance")). The Ordinance imposes restrictions and permit requirements on the construction and location of wireless telecommunications facilities. Plaintiff Sprint Telephony PCS alleges that, on its face, the Ordinance prohibits or has the effect of prohibiting the provision of wireless telecommunications services, in violation of the Act. The district court permanently enjoined the County from enforcing the Ordinance, and a three-judge panel of this court affirmed. Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700 (9th Cir.2007). We granted rehearing en banc, 527 F.3d 791 (9th Cir.2008), and we now reverse.

FACTUAL AND PROCEDURAL HISTORY

The County of San Diego enacted the Ordinance "to establish comprehensive guidelines for the placement, design and processing of wireless telecommunications facilities in all zones within the County of San Diego." San Diego County Ordinance No. 9549, § 1. The Ordinance categorizes applications for wireless telecommunications facilities into four tiers, depending primarily on the visibility and location of the proposed facility. San Diego County Zoning Ordinance § 6985. For example, an application for a low-visibility structure in an industrial zone generally must meet lesser requirements than an application for a large tower in a residential zone. Id.

Regardless of tier, the Ordinance imposes substantive and procedural requirements on applications for wireless facilities. For example, non-camouflaged poles are prohibited in residential and rural zones; certain height and setback restrictions apply in residential zones; and no more than three facilities are allowed on any site, unless "a finding is made that colocation of more facilities is consistent with community character." Id. An applicant is required to identify the proposed facility's geographic service area, to submit a "visual impact analysis," and to describe various technical attributes such as height, maintenance requirements, and acoustical information, although some exceptions apply. Id. § 6984. The proposed facility must be located within specified "preferred zones" or "preferred locations," unless those locations are "not technologically or legally feasible" or "a finding is made that the proposed site is preferable due to aesthetic and community character compatibility." Id. § 6986. The proposed facility also must meet many design requirements, primarily related to aesthetics. Id. § 6987. The applicant also must perform regular maintenance of the facility, including graffiti removal and proper landscaping. Id. § 6988.

General zoning requirements also apply. For example, hearings are conducted before a permit is granted, id. § 7356, and on appeal, if requested, id. § 7366(h). Before a permit is granted, the zoning board must find:

That the location, size, design, and operating characteristics of the proposed use will be compatible with adjacent uses, residents, buildings, or structures, with consideration given to:

1. Harmony in scale, bulk, coverage and density;

2. The availability of public facilities, services and utilities;

3. The harmful effect, if any, upon desirable neighborhood character;

4. The generation of traffic and the capacity and physical character of surrounding streets;

5. The suitability of the site for the type and intensity of use or development which is proposed; and to

6. Any other relevant impact of the proposed use[.]

Id. § 7358(a). The decision-maker retains discretionary authority to deny a use permit application or to grant the application conditionally. Id. § 7362.

Soon after the County enacted the Ordinance, Sprint brought this action, alleging that the Ordinance violates 47 U.S.C. § 253(a)¹ because, on its face, it prohibits or has the effect of prohibiting Sprint's ability to provide wireless telecommunications services. Sprint sought injunctive and declaratory relief under the Supremacy Clause and 28 U.S.C. § 1331, and damages and attorney fees under 42 U.S.C. § 1983. The County argued that § 253(a) did not apply to the Ordinance, because 47 U.S.C. § 332(c)(7) exclusively governs wireless regulations, and that, in any event, the Ordinance is not an effective prohibition on the provision of wireless services. The County also argued that damages and attorney fees are unavailable because Congress did not create a private right of action enforceable under 42 U.S.C. § 1983.

The district court first held that facial challenges to a local government's wireless regulations could be brought under either § 253(a) or § 332(c)(7), because neither is exclusive. The district court next held, relying on our decision in City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001), that the Ordinance violated § 253(a). The district court therefore permanently enjoined the County from enforcing the Ordinance against Sprint. Finally, the district court held that a claim under 42 U.S.C. § 1983 for a violation of § 253(a) was not cognizable and granted summary judgment to the County on that claim. The parties cross-appealed. A three-judge panel of this court affirmed, and we granted rehearing en banc.

STANDARDS OF REVIEW

We review for abuse of discretion the district court's grant of a permanent injunction, but review its underlying determinations "by the standard that applies to that determination." Ting v. AT & T, 319 F.3d 1126, 1134-35 (9th Cir.2003).

DISCUSSION

Sprint argues that, on its face, the Ordinance prohibits or has the effect of prohibiting the provision of wireless telecommunications services, in violation of the Act. As a threshold issue, the parties dispute which provision of the Act—47 U.S.C. § 253(a) or 47 U.S.C. § 332(c)(7)(B)(i)(II)—applies to this case.

A. The Effective Prohibition Clauses of 47 U.S.C. § 253(a) and 47 U.S.C. § 332(c)(7)(B)(i)(II)

When Congress passed the Act, it expressed 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; see also Ting, 319 F.3d at 1143 ("[T]he purpose of the ... Act is to `provide for a pro-competitive, deregulatory national policy framework ... by opening all telecommunications markets to competition.'" (quoting H.R.Rep. No. 104-458, at 113 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 124, 124)). The Act "represents a dramatic shift in the nature of telecommunications regulation." Cablevision of Boston, Inc. v. Pub. Improvement Comm'n, 184 F.3d 88, 97 (1st Cir.1999); see also Ting, 319 F.3d at 1143 (characterizing the Act as a "dramatic break with the past"). Congress chose to "end[ ] the States' longstanding practice of granting and maintaining local exchange monopolies." AT & T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 405, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999) (Thomas, J., concurring in part, dissenting in part).

Congress did so by enacting 47 U.S.C. § 253, a new statutory section that preempts state and local regulations that maintain the monopoly status of a telecommunications service provider. See Cablevision of Boston, 184 F.3d at 98 ("Congress apparently feared that some states and municipalities might prefer to maintain the monopoly status of certain providers.... Section 253(a) takes that choice away from them...."). Section 253(a) states: "No State or local statute or regulation, or other State or local legal...