Ninth Circuit Orders Permit for Tower in Anacortes, Washington; Clarifies Test for "Effective Prohibition"

On July 20, 2009, the U.S. Court of Appeals for the Ninth Circuit issued a decision in the case T-Mobile USA Inc. v. City of Anacortes, App. Case No. 08-35493, Slip Op. (July 20, 2009). The case, Anacortes, is the court’s first decision on the application of federal laws to local permitting of wireless facilities since the court’s en banc reversal in Sprint Telephony PCS, LP v. County of San Diego, 543 F.3d 571 (9th Cir. 2008), which the U.S. Supreme Court recently decided not to review. The Sprint decision was disappointing to the wireless industry, which had been fighting especially hard in the Ninth Circuit courts to contain abuses of local zoning authority resulting from open-ended wireless ordinances. Anacortes, which upheld a district court order to issue permits to T-Mobile for a 116-foot monopole located on church property, demonstrates that the Sprint decision was not as broad a grant of authority to local governments as some jurisdictions have claimed, but rather was more narrowly concerned about ensuring evidentiary support for a specific type of legal claim: “effective” prohibition of wireless services. Anacortes holds that a zoning board’s decision to deny permits for a wireless facility may nevertheless have the effect of prohibiting wireless services in violation of the federal telecommunications act even if the decision to deny the permits is consistent with the evidentiary requirements of a local zoning ordinance.

The case also stands for the proposition that an order to issue permits is an appropriate remedy for such a violation. The case is particularly important in that it is one of the few cases to rule that a denial constituted effective prohibition of wireless services even though the denial otherwise complied with the law. In so holding, the court provided significant guidance as to how the courts are to treat claims of effective prohibition. The case establishes that a provider must first make “a prima facie showing of effective prohibition by submitting a comprehensive application, which includes consideration of alternatives, showing the proposed [wireless communication facility] is the least intrusive means of filling a significant gap.” The burden then shifts to the local jurisdiction to “show that there are some potentially available and technologically feasible alternatives,” a showing that the provider may still dispute. The court also recognized that the “construction and operational costs that [the provider] would have to bear” is an appropriate consideration regarding the feasibility of a proposed alternative.

It is important to note that Anacortes in fact tried to rebut T-Mobile’s review of alternatives by offering several of its own alternatives, but the Court was not convinced and found the City’s suggestions to be unsupported, too speculative, or, with regard to the City’s effort to caste T-Mobile’s branded in-home service technology (HotSpot@Home) as a feasible alternative, irrelevant. In other words, the locality’s burden to show viable unexplored alternatives is not satisfied by merely proposing new locations. It must also provide credible and informed analysis demonstrating the alternative is both available and technically feasible. A copy of the Ninth Circuit slip opinion is available on our website at www.calwa.org.

The California Wireless Association (CalWA) is a nonprofit professional association that brings a unified voice to the wireless industry as we find ourselves facing the uniquely challenging marketing, operations and regulatory terrain of our state. In addition to providing general awareness of the wireless industry, educating consumers and public officials about the wireless industry and the critical role it plays in California, CalWA cultivates and fosters relationships among the members of the wireless industry and conducts fundraising for several charitable organizations. A copy of the decision may be downloaded by clicking here.

SUPREME COURT DENIES SPRINT'S PETITION FOR CERTIORARI IN SPRINT V. COUNTY OF SAN DIEGO

The United States Supreme Court has denied Sprint's petition seeking review of the Ninth Circuit's En Banc decision. Thus, the En Banc decision is now final.

The decision may make it more difficult to bring facial challenges to local wireless ordinances absent proof of actual prohibitive effect, but leaves intact the ability to challenge local zoning decisions on permit applications where the decisions violate federal restrictions, for example by prohibiting or having the effect of prohibiting the provision of wireless services, unreasonably discriminating among providers of functionally equivalent services unreasonably delaying a decision, failure of such a decision to be in writing and supported by substantial evidence contained in a written record or basing such a decision on the environmental effects of radio frequency emissions to the extent that such facilities comply with the FCC's regulations concerning such emissions. It also has no effect on challenges based on state law, such as the Permit Streamlining Act or other state limits on local jurisdictions' authority.

California Wireless Association: News

Ninth Circuit Orders Permit for Tower in Anacortes, Washington; Clarifies Test for "Effective Prohibition"

SUPREME COURT DENIES SPRINT'S PETITION FOR CERTIORARI IN SPRINT V. COUNTY OF SAN DIEGO