9th Circuit Holds That Wireless Zoning Ordinance Violates § 253(a), But This Creates No Private Right Of Action Under § 1983
March 13, 2007. The U.S. Court of Appeals (9thCir) issued its opinion [33 pages in PDF] in Sprint v. County of San Diego, affirming the judgment of the District Court that the wireless zoning ordinance in question is preempted by 47 U.S.C. § 253, but that this violation creates no private right of action for damages under 18 U.S.C. § 1983.
Sprint Telephony PCS and Pacific Bell Wireless, dba Cingular, provide wireless services. The County of San Diego enacted a zoning ordinance affecting wireless services, which the opinion refers to as a wireless telecommunications ordinance, or WTO.
The Court of Appeals offered this summary of the ordinance: "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 personal 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.´´ ... The WTO also discusses the general and design regulations applicable to wireless facilities ..." (Parentheses in original.)
Sprint and Cingular filed a complaint in U.S. District Court (SDCal) against the County of San Diego and its county supervisors alleging that the ordinance is preempted by 47 U.S.C. § 253 and seeking monetary damages under 18 U.S.C. § 1983.
Notably, this is not an action brought under 47 U.S.C. § 332, which specifically addresses local regulation of wireless services.
On March 22, 2005, the Court issued its opinion [22 pages in PDF] in Rancho Palos Verdes v. Abrams holding that an individual who brings an action to enforce the limitations on state and local authority to regulate the location, construction, and modification of wireless communications facilities under 47 U.S.C. § 332, cannot also recover damages under 42 U.S.C. § 1983. See also, story titled "Supreme Court Holds That Individuals Who Sue Under §332 Cannot Also Recover Damages Under §1983" in TLJ Daily E-Mail Alert No. 1,101, March 23, 2005.
The District Court held in the present case that the zoning ordinance is preempted by § 253, but that violation of § 253 creates no private right of action under § 1983.
Sprint and Cingular appealed the judgment of the District Court as to § 1983. The County of San Diego cross-appealed the judgment of the District Court as to § 253.
The Court of Appeals affirmed.
47 U.S.C. § 253 provides, in part, that "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 interstate or intrastate telecommunications service." However, it also contains several limitations upon the scope of this prohibition.
18 U.S.C. § 1983 provides that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ..."
The Court of Appeals held that "local zoning ordinances regulating the construction and placement of wireless communications facilities are within the preemptive scope of § 253(a) (removing barriers). Moreover, the County’s WTO is outside the scope of permissible land use regulations because it has the effect of prohibiting wireless communication services. We thus affirm the decision of the district court that § 253(a) preempts the WTO as a matter of law." (Parentheses in original.)
It also held that "§ 253(a) does not create a private right of action enforceable under § 1983".
This case is Sprint Telephony PCS and Pacific Bell Wireless v. County of
San Diego, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos.
05-56076 and 05-56435, appeals from the U.S.
District Court for the Southern District of California, D.C. No. CV-03-1398-BTM,
Judge Barry Ted Moskowitz presiding. Judge Myron Bright wrote the opinion of the
Court of Appeals, in which Judges Wallace Tashima and Carlos Bea joined.