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

• Decision Date: 13 March 2007
• Docket Number: No. 05-56435.,No. 05-56076.,05-56076.,05-56435.
• Parties: 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; Greg Cox, in his capacity as supervisor of the County of San Diego; Dianne Jacob, in her capacity as supervisor of the County of San Diego; Pam Slater, in her capacity as supervisor of the County of San Diego; Ron Roberts, in his capacity as supervisor of the County of San Diego; Bill Horn, in his capacity as supervisor of the County of San Diego, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

479 F.3d 1061

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; Greg Cox, in his capacity as supervisor of the County of San Diego; Dianne Jacob, in her capacity as supervisor of the County of San Diego; Pam Slater, in her capacity as supervisor of the County of San Diego; Ron Roberts, in his capacity as supervisor of the County of San Diego; Bill Horn, in his capacity as 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 October 26, 2006.

Filed March 13, 2007.

Daniel T. Pascucci, Andrew D. Skale, and Nathan R. Hamler, Buchanan Ingersoll LLP, San Diego, CA, for plaintiff-appellant-cross-appellee.

Thomas D. Bunton and John Sansome, County of San Diego Office of County Counsel, San Diego, CA, for defendants-appellees-cross-appellants.

Edward L. Donohue, argued, Donohue & Blue PLC, Alexandria, VA, for Amici Curiae T Mobile USA, Inc. and PCIA, the Wireless Infrastructure Association.

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 MYRON H. BRIGHT,^* TASHIMA, and BEA, Circuit Judges.

BRIGHT, Circuit Judge.

Sprint Telephony PCS sought an injunction in the district court to prevent San Diego County ("the County") from enforcing its Wireless Telecommunications Facilities zoning ordinance ("WTO"). The district court granted a permanent injunction, agreeing with Sprint that the WTO's regulation of wireless facility placement violated § 253(a) of the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (1996) (codified as amended in scattered sections of U.S.C. Titles 15, 18, & 47) ("TCA"). But, the court held that § 253(a) did not create a private right of action and thus denied Sprint's 28 U.S.C. § 1983 claim for money damages and attorney's fees. See Sprint Telephony PCS, L.P. v. County of San Diego, 377 F.Supp.2d 886 (S.D.Cal.2005). Sprint appeals the denial of its § 1983 claim, and the County cross-appeals seeking reversal of the order granting the permanent injunction. We conclude that the burdens imposed by the WTO were sufficient to sustain a facial challenge under § 253(a) and that Congress did not intend to permit enforcement of § 253(a) through a § 1983 damages action. We accordingly affirm the district court.

I.

Today's wireless age began when Guglielmo Marconi developed a way for ships to communicate over radio waves in 1895. See PETER W. HUBER ET AL., FEDERAL TELECOMMUNICATIONS LAW 10, 861 (2d ed.1999) (hereinafter "HUBER"). Mobile technology in the United States initially relied on single-cell transmission, which severely limited the number of subscribers who could utilize the system. It was not until December 1947 that Bell Labs scientist D.H. Ring conceptualized cellular telecommunications in an internal technical memorandum. See 1946: First Mobile Telephone Call, available at http://www.corp. att.com/attlabs/reputation/timeline/46 mobile.html (last visited Mar. 5, 2007). Ring's system employed multiple transmission sites and re-used frequencies, overcoming the limitations of the single-cell transmission system that was constrained by the number of channels available within the radio spectrum first allocated to mobile communications by the Federal Communications Commission ("FCC") in 1949. See Huber at 862 (citing General Mobile Radio Service, Report and Order of the Commission, 13 F.C.C. 1190 (1949)). Ring's concept did not, however, replace the singlecell model until the 1980s. See Huber at 864. Before cellular technology took hold, the radio spectrum dedicated to mobile communications supported only 140,000 subscribers. Id.

A. The Development of Cellular Technology

Nationwide wireless capacity grew as providers adopted cellular technology and as the FCC gradually expanded the radio spectrum available to mobile telecommunications. See id. at 903-08; see also FCC, Cellular Services: Band Plan, available at http://wireless.fcc.gov/services/index.htm? job= service_bandplan & id=cellular (last visited Mar. 5, 2007). In June 1985, when the Cellular Telecommunication Industry Association ("CTIA") began its semi-annual survey of the industry, the CTIA reported 203,600 domestic cellular subscribers. See CTIA, Background on CTIA's Semi-Annual Wireless Industry Survey, available at http://files.ctia.org/pdf/ CTIAMidYear2006Survey.pdf (last visited Mar. 5, 2007) ("CTIA Survey"). By June 2006, as we prepared to hear this appeal, that number had grown to 219,420,457. Id.

The corresponding infrastructure necessary to support today's cellular technology is extensive. Cellular telecommunications takes its name from the network of hexagonal cells, which "resemble honeycombs," blanketing the coverage area. See Jeffrey Berger, Efficient Wireless Tower Sitting: An Alternative to Section 332(c)(7) of the Telecommunications Act of 1996, 23 TEMP. ENVTL. L. & TECH. J. 83, 87 (2004). Each cell contains an antenna tower, which emits and receives signals to and from the subscribers within its geographic area. Id. As Ring originally proposed, users are seamlessly passed from tower to tower as they move within the system. Id. Approximately 200,000 cellular sites currently support more than 200 million subscribers nationwide. See CTIA Survey.

The growing demand for cellular service requires the construction of additional cellular sites, which has met with opposition in some communities. See Berger at 86 (describing the opposition to cellular towers). Congress addressed growing concern that the lack of a national wireless policy inhibited growth of the industry in provisions of the Omnibus Budget Reconciliation Act of 1993, Pub.L. No. 103-66, § 6001-03, 107 Stat. 312 (1993). The provisions, in addition to expanding the radio spectrum available to wireless carriers, amended section 332 of the Communications Act of 1934, 47 U.S.C. § 332, to address the "regulatory treatment of mobile services." See § 6002, 107 Stat. at 392-95 (codified at 47 U.S.C. § 332(c) (1988 & Supp. V 1993)).

B. The Telecommunications Act of 1996

Congress reaffirmed its commitment to nationwide telecommunications and cellular service when it passed the TCA in 1996. It announced 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 (1996). The TCA, which also amended the Communications Act of 1934, in part added a section expressly preempting state and local regulations that have the effect of prohibiting any telecommunications service:

§ 253 Removal of Barriers to Entry

(a) In general

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 inter-state or intrastate telecommunications service.

(b) State regulatory authority

Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.

(c) State and local government authority

Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.

(d) Preemption

If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates sub-section (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.

(e) Commercial mobile service providers

Nothing in this section shall affect the application of section 332(c)(3) of this title to commercial mobile service providers.

§ 101, 110 Stat. at 70-71 (codified at 47 U.S.C. § 253(a)-(e) (1994 & Supp. II 1996)) (hereinafter "removing barriers"). Congress, by preempting state and local statutes, "ended 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); see also Cablevision of Boston, Inc. v. Pub. Improvement Comm'n of Boston, 184 F.3d 88, 97-98 (1st Cir.1999) (explaining that § 253 implements Congress's "free market vision" by preventing states and localities from maintaining the "monopoly status of certain providers, on the belief that a single regulated provider would provide better or more universal service," id. at 98).

In addition to § 253(a), which protects all common carriers, the TCA amended the code provisions applicable to only mobile services. See 47 U.S.C. § 332(c) (1994 & Supp. II 1996). Prior to passage of the TCA, § 332 included, among other provisions, the factors the FCC must consider as it manages the electromagnetic spectrum assigned to private mobile services. See id. § 332(a) (1994). Section 332 also required commercial mobile service providers to be treated as common carriers (subject to limited exceptions that the FCC may establish). See id. § 332(c) (1994). The TCA,...