Metropcs, Inc. v. City and County of San Francisco

• Decision Date: 07 March 2005
• Docket Number: No. 03-16759.,No. 03-16760.,03-16759.,03-16760.
• Citation: 400 F.3d 715
• Parties: METROPCS, INC., a Delaware Corporation, Plaintiff-Appellant-Cross-Appellee, v. The CITY AND COUNTY OF SAN FRANCISCO and The Board of Supervisors of the City of San Francisco, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

400 F.3d 715

METROPCS, INC., a Delaware Corporation, Plaintiff-Appellant-Cross-Appellee, v. The CITY AND COUNTY OF SAN FRANCISCO and The Board of Supervisors of the City of San Francisco, Defendants-Appellees-Cross-Appellants.

No. 03-16759.

No. 03-16760.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2004.

Filed March 7, 2005.

COPYRIGHT MATERIAL OMITTED

Martin L. Fineman, Davis Wright Tremaine LLP, San Francisco, CA, for the plaintiff-appellant/cross-appellee.

William K. Sanders, Deputy City Attorney, San Francisco, CA, for the defendants-appellees/cross-appellants.

James A. Heard, Mackenzie & Albritton LLP, San Francisco, CA; Steven E. Grill, Devine, Millimet & Branch, P.A., Manchester, NH; Scott J. Grossberg and Javan N. Rad, Cihigoyenetche, Grossberg & Clouse, Rancho Cucamonga, CA; Paul J. Lawrence, Preston Gates & Ellis LLP, Seattle, WA; and Daniel Pascucci, Fish & Richardson, P.C., San Diego, CA, and Paul L. Weisbecker, Litigation Counsel, Cingular Wireless LLC, Atlanta, GA, for the amici curiae.

Appeals from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-02-3442 PJH.

Before: CUDAHY,^* GRABER and FISHER, Circuit Judges.

OPINION

CUDAHY, Circuit Judge:

MetroPCS brought the instant action in the District Court for the Northern District of California, alleging that a decision by the San Francisco Board of Supervisors denying MetroPCS permission to construct a wireless telecommunications antenna atop a city parking garage violated several provisions of the Telecommunications Act of 1996(TCA). Specifically, MetroPCS alleged that the Board's decision (1) was not "in writing" as required by the TCA, (2) was not supported by substantial evidence, (3) constituted unreasonable discrimination among providers of functionally equivalent wireless services, (4) prohibited or had the effect of prohibiting the provision of wireless services and (5) was improperly based on environmental concerns about radio frequency (RF) emissions.

Both parties moved for summary judgment, and the district court granted the City's motion for summary judgment as to all claims except the prohibition claim, ruling that material questions of fact remained as to whether the Board's decision had the effect of prohibiting the provision of personal wireless services. Both parties now appeal the ruling below, and we affirm in part and reverse in part the district court's decision.

I. BACKGROUND

This case marks yet another episode in the ongoing struggle between federal regulatory power and local administrative prerogatives — the kind of political collision that our federal system seems to invite with inescapable regularity. And as most often happens in such cases, the courts are summoned to re-strike the balance of power between the national and the local. More specifically, we are called upon to interpret several provisions of the TCA, an exegetical effort having implications for Federal Communications Commission (FCC) licensing authority, wireless telecommunications companies and municipal zoning authorities alike. The stakes of the current dispute are especially high since this case involves several important questions of law that have not yet been authoritatively addressed by this Circuit.

The basic facts of this case are not in dispute. MetroPCS is a provider of wireless telecommunications services. It is licensed by the FCC to construct and operate radio transmitting and receiving facilities in San Francisco, Oakland and San Jose, California (the Bay Area). On January 15, 2002, MetroPCS submitted to the City of San Francisco's Planning Department an application for a Conditional Use Permit (CUP) to install six panel antennas on an existing light pole located on the roof of a parking garage at 5200 Geary Boulevard (the Geary site). The proposed facility was to consist of (1) six panel antennas mounted 53 feet above the sidewalk grade on an existing light pole on the roof of a 42-foot-high parking garage, and (2) equipment cabinets mounted on an existing wall on the garage roof. Each antenna was to be five feet long and painted to match the garage. The proposed installation was designed to improve MetroPCS's wireless service coverage in the Richmond District, where the Geary site is located. MetroPCS chose the Geary site after evaluating the technical feasibility of several sites in the area and considering community objections to alternative site locations.

Under the San Francisco Planning Code, the Geary site is located within an "NC-3" or "Moderate Scale Neighborhood Commercial District." In an NC-3 zoning district, a wireless facility (such as a panel antenna) is considered a public use that requires a CUP from the City Planning Commission. Because the Geary site is located on top of a commercial structure in an NC-3 zoning district, it is classified as a Location Preference 4 under the City's Wireless Telecommunications Facilities Siting Guidelines — it is neither a high-priority site nor a "disfavored" site. On April 18, 2002, the San Francisco Planning Commission held a public hearing to consider MetroPCS's application for a CUP at the Geary site. At the close of the hearing, the Planning Commission voted to grant MetroPCS's application. The Planning Commission later adopted written findings and drafted a written decision. These findings included a determination that the proposed MetroPCS antenna facility is necessary to MetroPCS's service coverage in the Richmond District and "both necessary and desirable" for the community.

On May 20, 2002, Richmond District resident Robert Blum filed an appeal of the Planning Commission's decision with the City Board of Supervisors (the Board). Mr. Blum was joined by some 80 local property owners, representing almost 60% of the land area within 300 feet of the Geary site, who signed petitions in support of the appeal. Hundreds of other San Francisco residents also signed a petition opposing construction of the MetroPCS facility at the Geary site. Consistent with applicable local zoning procedures, the Board of Supervisors held a public hearing to consider the appeal on June 17, 2002. At the hearing, a number of community members (including Mr. Blum and his son) voiced disapproval of MetroPCS's CUP application. Local residents asserted, inter alia, that the antenna facility was not necessary for MetroPCS or the community since the Richmond District already enjoys excellent wireless service, that the facility would create a visual blight detrimental to the neighborhood character and that the facility would produce harmful RF emissions hazardous to public health.

Representatives of MetroPCS — including company managers and technical staff — appeared before the Board to speak in favor of the proposed facility, claiming that the antenna installation is necessary for MetroPCS's service coverage of the Richmond District and that it is an unobtrusive facility that will not constitute a visual or industrial blight on the neighborhood. At the conclusion of the hearing, the Board of Supervisors unanimously voted to overturn the decision of the Planning Commission and to deny MetroPCS the CUP. The Board's findings were later formally adopted in a five-page written decision disseminated on June 24, 2002.

In articulating the bases for its decision, the Board's written opinion formally found that (1) the proposed facility is not necessary to MetroPCS's ability to service the Richmond District around the Geary site, (2) the facility is not necessary for the community, since there is already adequate wireless service in the neighborhood around the Geary site, (3) the proposed facility would constitute a "visual and industrial blight" and would be detrimental to the character of the neighborhood and (4) the proposed antenna facility is not in conformity with and would not further the policies of the City's General Plan. The Board's decision asserted that its denial of the CUP application did not reflect unreasonable discrimination against MetroPCS, did not limit or prohibit access to wireless services and did not limit or prohibit the filling of a significant gap in MetroPCS's service coverage. The Board also maintained that the proposed facility was not the least intrusive way to provide wireless services in the Richmond District.

On July 17, 2002, MetroPCS filed a complaint in the District Court for the Northern District of California claiming that, in denying its application for a CUP, the City (via the Board) had violated several provisions of § 332(c)(7) of the TCA. Both MetroPCS and the City moved for summary judgment on all claims, and on April 25, 2003, the district court issued a decision granting in part and denying in part the City's motion for summary judgment, and denying in part MetroPCS's motion for summary judgment. MetroPCS, Inc. v. City & County of San Francisco, 259 F.Supp.2d 1004 (N.D.Cal.2003).

Specifically, the district court held that (1) the Board's written denial of MetroPCS's CUP application constituted a decision "in writing" as required by § 332(c)(7) of the TCA, (2) the Board's decision was supported by "substantial evidence," (3) the Board did not unreasonably discriminate among providers of functionally equivalent services and (4) the Board's decision was not impermissibly based on concerns over RF emissions. The City was granted summary judgment with respect to its claims on each of these issues. Id. However, the district court also held that significant questions of material fact existed as to whether the Board's denial of MetroPCS's CUP application prohibited or had the effect of prohibiting the provision of wireless services in violation of § 332(c)(7) of the TCA. Id. at 1012-15. Accordingly, the district court denied both parties' motions for summary judgment as to this issue. Id. at 1015. Both parties were granted leave to appeal the district...