by Joel Ellinwood, AICP
California provided the battleground for two recent significant cases that clarified the Telecommunications Act of 1996 (TCA) as it pertains to local zoning powers and the siting of wireless communication antenna facilities. The United States Supreme Court ruled in City of Rancho Palos Verdes v. Abrams, 125 S.Ct. 1453 (2005) that remedies for violation of the TCA are limited to injunctive relief and do not include the award of damages or attorney’s fees under the federal Civil Rights Act. The Ninth Circuit Court of Appeals decided in MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715 (2005) to balance the needs of wireless companies to provide effective service and local governments to exercise zoning controls over location and appearance of sites. Taken together, the two decisions set out the “rules of engagement” for future wireless facility siting battles in California.
Although Rancho Palos Verdes v. Abrams involved a commercial two-way radio transmitting antenna owned by an individual and not a cell phone company, the holding will apply to cell tower siting as well. The threat of litigation asserting violations of the TCA as well as federal Civil Rights Act damages and attorney’s fees claims by well-financed wireless carriers against cities and counties has been a rallying cry for opponents of new wireless antenna sites. It has also been used as a leverage point by wireless companies that have not been shy about raising the issue to try to persuade local governments to acquiesce. Removing potential damage claims and attorney’s fees from the wireless companies’ arsenal somewhat levels the playing field, although bearing the cost of their own attorney fees for defense of a federal court TCA case alone can be burdensome for local governments.
The MetroPCS case involves the fundamentals of cell tower controversies and the language of the TCA itself. MetroPCS was the sixth wireless company to establish a network of sites in the lucrative San Francisco Bay area market, where other companies were already well established. As a late-comer, it faced the full wrath of community activists aroused by siting battles with the previous companies. In the Richmond District of San Francisco, MetroPCS applied for a conditional use permit to place antennas on an existing light pole on the top floor of a parking garage. The Planning Commission approved the application and the opponents appealed to the City Board of Supervisors.
Congress, in drafting the TCA, recognized that creation of effective nationwide wireless networks with sufficient competition to increase innovation, improve customer service and lower prices would require thousands of cell tower sites to handle the sheer volume of users and calls. The TCA established expedited procedures for wireless companies to challenge the denial of land use permits by local governments in federal court. To facilitate judicial review the TCA set standards for the basis of findings required by local land use permit agencies. These are modeled after standards generally used by state courts in judicial review of local government quasi-adjudicatory permitting proceedings. However, the interpretation of these standards has been far from uniform, and the decisions of federal Circuit Courts of Appeal vary significantly.
In MetroPCS, the Ninth Circuit addressed requirements for local governments to deny a wireless facility permit. The TCA requires that the decision must be in writing, based on substantial evidence in the record, must not discriminate between providers of functionally equivalent services, may not prohibit the provision of services, or be based on concerns regarding the environmental and health effects of radio frequency emissions (“RF”) if the provider demonstrates that it complies with FCC regulations concerning those emissions. MetroPCS argued that the Ninth Circuit should adopt the approach that the “in writing” requirement means written decisions must state the reasons for the decision and link its conclusions to the evidence in the record (in our view, the best practice for any administrative decision subject to judicial review). The court chose what it describes as the middle course and held that the city or county should prepare a written denial separate from the written record with an explanation of the reasons for the denial to allow reviewing courts to evaluate the evidence in the record supporting those reasons.
In determining the burden of proof, the Ninth Circuit rejected MetroPCS’s attempt to require that substantial evidence in the record be specified and related to TCA . Instead, the court opted to measure whether or not there was sufficient relevant evidence in the record that a reasonable mind might accept as adequate support for a conclusion that the application failed to meet the permitting requirements of state and local land use law. In San Francisco, the ordinance requires that the Planning Commission consider whether the proposed conditional use is “necessary or desirable for, and compatible with, the neighborhood or the community.” The court held that evidence of adequate mobile phone service in the community provided by other wireless companies was sufficient to support the denial under the terms of the necessity requirement of the local ordinance.
MetroPCS next argued that reliance by the City on the necessity finding was discriminatory against new entrants to an existing market. The court, in reversing the summary judgment granted by the District Court, ruled that MetroPCS would have to put forth evidence of how its proposed facility compares to the existing sites of its competitors to sustain the claim that the City unreasonably discriminated against it.
MetroPCS also claimed that the record of boisterous demonstrators at hearings concerned about RF emissions was proof that impermissible environmental considerations of RF safety factored into the City’s denial. The court dismissed the claim. This indicates that a denial will be upheld regardless of public clamor about health effects so long as the denial references only traditional zoning rationalizations expressed in terms of local ordinances which are sufficiently supported by evidence in the record.
Section 332 of the TCS states that “regulation…shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” The court interpreted this to mean that there should be a balance of multiple providers. The court found that denial of a zoning permit for a site that would result in a “significant gap” in the service network of a particular provider may constitute an effective prohibition. It would be an insufficient defense for a locality to assert that at least one wireless provider has service in an area, since one of the TCA’s principal goals is to foster competition. To be “significant” the gap must be more than individual “dead spots’ within a greater service area. Once a wireless service provider demonstrates the existence of a significant gap, it must then show that the proposed site in question is the least intrusive alternative means of filling the gap.
The MetroPCS case, while defining the rules of engagement for siting decisions for a new or expanding network, is of no help in resolving controversies over new sites needed for wireless service providers utilizing more mature networks. Coverage may exist in a given area but gaps in service exist that are caused by capacity problems because too many users are trying to use the network at the same time. In this sense, the MetroPCS decision is a cutting edge decision for yesterday’s problem. The wireless industry may be hampered by its own success. Rules such as those adopted by the Ninth Circuit in the MetroPCS case will only encourage the consolidation of the number of service providers in the industry so that a sufficient number of sites and bandwidth are available to meet the expectations of consumers. Whether this trend will leave enough competitors to keep consumer prices down and quality of service up remains to be seen.
Joel Ellinwood is a senior associate with Abbott & Kindermann, LLP and previously worked as a planner and land use consultant for wireless companies. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.