Sprint Telephony PCS, L.P. v. County of San Diego ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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. Nos. 05-56076
COUNTY OF SAN DIEGO; GREG COX, 05-56435
in his capacity as supervisor of the
County of San Diego; DIANNE
 D.C. No.
CV-03-1398-BTM
JACOB, in her capacity as
supervisor of the County of San OPINION
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.

Appeals from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, District Judge, Presiding
Argued and Submitted
October 26, 2006—Pasadena, California
2989
2990 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
Filed March 13, 2007
Before: Myron H. Bright,* A. Wallace Tashima, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bright
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 2993
COUNSEL
Daniel T. Pascucci, Andrew D. Skale, and Nathan R. Hamler,
Buchanan Ingersoll LLP, San Diego, California, for plaintiff-
appellant-cross-appellee.
Thomas D. Bunton and John Sansome, County of San Diego
Office of County Counsel, San Diego, California, for
defendants-appellees-cross-appellants.
OPINION
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 Telecom-
munications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
2994 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
(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 enforce-
ment 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 TELECOMMUNI-
CATIONS 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 conceptu-
alized cellular telecommunications in an internal technical
memorandum. See 1946: First Mobile Telephone Call, avail-
able at http://www.corp.att.com/attlabs/reputation/timeline/
46mobile.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 sys-
tem that was constrained by the number of channels available
within the radio spectrum first allocated to mobile communi-
cations by the Federal Communications Commission (“FCC”)
in 1949. See Huber at 862 (citing General Mobile Radio Ser-
vice, Report and Order of the Commission, 13 F.C.C. 1190
(1949)). Ring’s concept did not, however, replace the single-
cell model until the 1980s. See Huber at 864. Before cellular
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 2995
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 sub-
scribers. 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 telecommu-
nications takes its name from the network of hexagonal cells,
which “resemble honeycombs,” blanketing the coverage area.
See Jeffrey Berger, Efficient Wireless Tower Sitting: An Alter-
native 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. Approxi-
mately 200,000 cellular sites currently support more than 200
million subscribers nationwide. See CTIA Survey.
The growing demand for cellular service requires the con-
struction of additional cellular sites, which has met with oppo-
sition in some communities. See Berger at 86 (describing the
opposition to cellular towers). Congress addressed growing
2996 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
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 ser-
vices.” 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 tele-
communications 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 telecommunica-
tions 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 ser-
vice:
§ 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 ser-
vice.
(b) State regulatory authority
Nothing in this section shall affect the
ability of a State to impose, on a competi-
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 2997
tively neutral basis and consistent with sec-
tion 254 of this title, requirements
necessary to preserve and advance univer-
sal 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 author-
ity of a State or local government to man-
age the public rights-of-way or to require
fair and reasonable compensation from tele-
communications providers, on a competi-
tively neutral and nondiscriminatory basis,
for use of public rights-of-way on a nondis-
criminatory basis, if the compensation
required is publicly disclosed by such gov-
ernment.
(d) Preemption
If, after notice and an opportunity for
public comment, the Commission deter-
mines that a State or local government has
permitted or imposed any statute, regula-
tion, 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 require-
ment 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.
2998 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
§ 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 (1999) (Thomas, J., concurring in part, dis-
senting 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 main-
taining 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 man-
ages 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, though, added
subsection (c)(7), which expressly preserves the authority of
local governments to make decisions, subject to certain limi-
tations, regarding the placement of wireless service facilities:
(7) Preservation of local zoning authority
(A) General authority
Except as provided in this paragraph,
nothing in this chapter shall limit or affect
the authority of a State or local government
or instrumentality thereof over decisions
regarding the placement, construction, and
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 2999
modification of personal wireless service
facilities.
(B) Limitations
(i) The regulation of the placement,
construction, and modification of personal
wireless service facilities by any State or
local government or instrumentality thereof
—
(I) shall not unreasonably discriminate
among providers of functionally equiva-
lent services; and
(II) shall not prohibit or have the effect
of prohibiting the provision of personal
wireless services.
(ii) A State or local government or
instrumentality thereof shall act on any
request for authorization to place, construct,
or modify personal wireless service facili-
ties within a reasonable period of time after
the request is duly filed with such govern-
ment or instrumentality, taking into account
the nature and scope of such request.
(iii) Any decision by a State or local
government or instrumentality thereof to
deny a request to place, construct, or mod-
ify personal wireless service facilities shall
be in writing and supported by substantial
evidence contained in a written record.
(iv) No State or local government or
instrumentality thereof may regulate the
placement, construction, and modification
3000 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
of personal wireless service facilities on the
basis of the environmental effects of radio
frequency emissions to the extent that such
facilities comply with the Commission’s
regulations concerning such emissions.
(v) Any person adversely affected by
any final action or failure to act by a State
or local government or any instrumentality
thereof that is inconsistent with this sub-
paragraph may, within 30 days after such
action or failure to act, commence an action
in any court of competent jurisdiction. The
court shall hear and decide such action on
an expedited basis. Any person adversely
affected by an act or failure to act by a State
or local government or any instrumentality
thereof that is inconsistent with clause (iv)
may petition the Commission for relief.
§ 704, 110 Stat. at 151-52 (codified at 42 U.S.C. § 332(c)(7)
(1994 & Supp. II 1996)) (hereinafter “preserving local zoning
authority”).
The addition of § 332(c)(7) represented a conscious choice
by the House and Senate conferees to maintain limited state
and local control over the placement of wireless facilities. See
Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 406-
07 (3d Cir. 1999); Town of Amherst v. Omnipoint Communi-
cations Enters., Inc., 173 F.3d 9, 13 (1st Cir. 1999). The
House, concerned that “siting and zoning decisions by non-
federal units of government[ ] have created an inconsistent
and, at times, conflicting patchwork of requirements which
will inhibit the deployment of Personal Communications Ser-
vices as well as the rebuilding of a digital technology-based
cellular telecommunications network,” would have required
the FCC to regulate directly the placement of wireless facili-
ties. H.R. Rep. No. 104-204(I), at 94 (1995), reprinted in
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3001
1996 U.S.C.C.A.N. 10, 61. The conferees, however, created
§ 332(c)(7) in an effort to “prevent[ ] Commission preemption
of local and State land use decisions and preserve[ ] the
authority of State and local governments over zoning and land
use matters except in the limited circumstances set forth in the
conference agreement.” H.R. Conf. Rep. No. 104-458, at 207-
08 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222.
C. The County’s Enactment of the Wireless
Telecommunications Facilities Ordinance
Against the backdrop of the TCA, the County, in April
2003, enacted Ordinance Number 9549, “An Ordinance
Amending the San Diego Zoning Ordinance Relating to Wire-
less Telecommunications Facilities.” The WTO supplements
the County’s general zoning ordinance (hereinafter “Zoning
Ordinance”) and creates a four-tier system for the granting of
wireless facility permits. According to the WTO a provider,
such as Sprint, must obtain one of four conditional use per-
mits before constructing a wireless facility: (1) Administrative
Site Plan Permit; (2) Site Plan with Community Review Per-
mit; (3) Minor Use Permit; or (4) Major Use Permit. WTO
§ 6985. Each class of permit defines the wireless facility proj-
ects that fall within its scope, based on factors including the
placement, visibility, and height of the proposed structure. Id.
We briefly summarize the permit application requirements
of the WTO. A permit applicant must: (1) identify the geo-
graphic 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 sim-
ulated 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
3002 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
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 econom-
ically feasible and aesthetically desirable,” and the “lease area
of the proposed facility on the plot plan.” See WTO §§ 6984,
6986(B). The WTO also discusses the general and design reg-
ulations applicable to wireless facilities, so that an applicant
may design a compliant facility. See WTO §§ 6985(C), 6987.
In addition to the provisions of the WTO, wireless provid-
ers that apply for use permits are subject to other requirements
contained in the Zoning Ordinance. The Zoning Ordinance
requires applicants to submit: (1) a list of “all persons having
a interest in the application as well as the names of all persons
having any ownership interest in the property involved;” (2)
complete plans for the site; and (3) an “appropriate environ-
mental impact review document.” See Zoning Ordinance
§ 7345(b).
Following submission of an application, the review pro-
cess, established by the Zoning Ordinance and the provisions
added by the WTO, reserves to the County’s permitting
authority significant discretion. Before a use permit is
granted, the authority must find that “the location, size,
design, and operating characteristics of the proposed use will
be compatible with adjacent uses, residences, or structures.”
Zoning Ordinance § 7358(a). The Zoning Ordinance lists
items of “consideration,” but leaves the authority to consider
“any other relevant impact of the proposed use.” Id.
§ 7358(a)(6). Additionally, the WTO requires that the deci-
sion maker must determine that the proposed facility is appro-
priately “camouflaged,” “consistent with community
character,” and designed to have minimum “visual impact.”
See WTO §§ 6985, 6987. Finally, the Zoning Ordinance, inter
alia, allows the County’s permitting authority to impose con-
ditions on the use consistent with the objectives of the Zoning
Ordinance, id. § 7362; to permit seemingly open-ended public
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3003
hearings, id. § 7356 (hearing before grant or denial of use per-
mit), § 7366(h) (hearing on appeal from grant or denial of use
permit); and to order revocation or modification of a use per-
mit following a violation, id. § 7382 (a)(2). The ordinance
also observes that it is a misdemeanor or infraction to violate
a use permit’s conditions. Id. § 7703.
II.
Sprint and its co-plaintiff in the district court, Pacific Bell
Wireless, LLC, dba Cingular Wireless, brought a prima facie
challenge to the WTO, arguing that it was preempted by
§ 253(a) (removing barriers).1 Sprint suggested that the “oner-
ous” permitting structure of the WTO, and the discretion
retained by the County, prevented it from providing wireless
service. Sprint also argued that the four-tier permitting system
imposed by the WTO added an additional tier that was not
generally applicable to all telecommunications providers, and
thus the ordinance discriminated against wireless telecommu-
nications providers in violation of § 253(c) (addressing state
and local authority to manage the public rights-of-way) and
the Fourteenth Amendment to the Constitution. In addition to
a permanent injunction against the enforcement of the WTO,
Sprint sought § 1983 money damages and attorney’s fees. The
County, however, argued that § 253(a) was inapplicable to
zoning ordinances which regulate wireless providers. Rather,
the County suggested that § 332(c)(7) (preserving local zon-
ing authority) governed the ability of local governments to
regulate wireless facility placement and construction, and that
Congress provided in § 332(c)(7) the exclusive mechanism to
challenge zoning decisions.
The district court first addressed the applicability of
§ 253(a) when it considered the County’s motion under Fed-
1
The district court dismissed with prejudice the claims of Pacific Bell
Wireless on February 8, 2005, pursuant to a stipulation of dismissal filed
by the parties.
3004 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
eral Rule of Civil Procedure 12(b)(6) to dismiss. The court
held that the plain language of § 253(a) permitted a facial
challenge to a local ordinance, while § 332(c)(7) governed
challenges to individual facility placement decisions. Never-
theless, Sprint’s § 253(c) and Fourteenth Amendment equal
protection claims failed, according to the court, because
§ 253(c) is a safe-harbor provision that does not give rise to
a separate cause of action. Sprint also failed to meet its burden
of refuting the rational basis for the WTO’s allegedly discrim-
inatory classification, which the court reasoned was its obliga-
tion in order to bring a Fourteenth Amendment claim. Finally,
the court permitted Sprint’s § 1983 claim to proceed because
the County only challenged in its Rule 12(b)(6) motion the
applicability of § 253(a).
The County next filed a Federal Rule of Civil Procedure
12(c) motion for judgment on the pleadings. It argued that
§ 253(a) did not create a private right of action, and thus
Sprint could not employ the statute to seek an injunction or
§ 1983 damages and fees. The County also argued that the
members of its Board of Supervisors, named by Sprint as
defendants in their individual capacities, were absolutely
immune from damages under § 1983. The district court,
applying the factors described in Cort v. Ash, 422 U.S. 66, 78
(1975), determined that Congress “impliedly created a private
right of action under § 253(a).” The court next recognized the
presumption in favor of enforcing federal rights under § 1983
and determined that the TCA did not foreclose the remedy.
Finally, the court agreed that the County of San Diego Super-
visors were immune from damages in their capacity as legis-
lators and dismissed them from the suit.
Sprint and the County filed motions for summary judg-
ment. Sprint argued that, as a matter of law, the WTO violated
§ 253(a) and therefore the court should enjoin enforcement of
the ordinance and award damages and fees under § 1983. The
County, inter alia, reasserted its argument that § 332(c)(7)
was the provision of the TCA applicable to the placement of
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3005
wireless telecommunications facilities and thus Sprint could
not bring a claim under § 253(a). The court granted Sprint’s
request for a permanent injunction, but vacated its earlier rul-
ing that § 253(a) could support a claim for § 1983 damages.2
III.
In general we review a summary judgment order granting
a permanent injunction for abuse of discretion. Washington
State Republican Party v. Wash., 460 F.3d 1108, 1115 (9th
Cir. 2006). “However, ‘any determination underlying the
grant of an injunction [is reviewed] by the standard that
applies to that determination.’ ” Id. (quoting Ting v. AT&T,
319 F.3d 1126, 1134-35 (9th Cir. 2003)). Thus, we review the
district court’s findings of fact for clear error and its determi-
nations of law—including the determination that a local stat-
ute is preempted by federal law—de novo. See Ting, 319 F.3d
at 1135; see also Olympic Pipe Line Co. v. City of Seattle, 437
F.3d 872, 877 & n.12 (9th Cir. 2006); Qwest Communications
Inc. v. City of Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006)
(hereinafter “Berkeley”) (reviewing de novo district court’s
decision that § 253 preempted local right-of-way use ordi-
nance).
IV.
This appeal presents three related questions of law. The
threshold question is whether Sprint may seek a permanent
injunction against the enforcement of the WTO under
§ 253(a) (removing barriers). The second question is whether
the WTO violates § 253(a) as a matter of law. See, e.g.,
United States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003)
2
This case was originally assigned to the District Judge Judith Keep,
who ruled on the County’s motions to dismiss the case and for judgment
on the pleadings. Following Judge Keep’s death on September 14, 2004,
the case was reassigned to District Judge Barry Ted Moskowitz, who ruled
on the parties’ motions for summary judgment.
3006 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
(“[A] facial challenge to the constitutionality of a statute is a
question of law”), see also United States v. Salerno, 481 U.S.
739, 745 (1987). The final question is whether Sprint may
recover money damages and fees arising from a violation of
§ 253(a) under § 1983.
A. The Availability of Injunctive Relief
The County first challenges the applicability of § 253(a)
(removing barriers) to local zoning ordinances, a matter of
first impression in this circuit. We must determine whether, as
a matter of law, § 253(a) may preempt a wireless facilities
zoning ordinance. The County concedes that § 253(a), which
covers all common carriers, is generally applicable to wireless
providers, but argues that § 332(c)(7) (preserving local zoning
authority) should govern challenges regarding the placement
and construction of wireless facilities.
1. Sprint’s Ability to Seek Injunctive Relief
As a threshold matter, we must consider whether Sprint has
standing to challenge the WTO under § 253(a). The County,
in filings before the district court, conceded the availability of
injunctive relief under the Supremacy Clause if the WTO was
within the preemptive scope of § 253(a). See U.S. Const. art.
VI, § 2. We nevertheless pause to consider the district court’s
jurisdiction. See Juidice v. Vail, 430 U.S. 327, 331 (1977)
(court must consider standing of party under Article III
despite failure of parties to raise the issue).
[1] We acknowledged in City of Auburn v. Quest Corpora-
tion that the Supremacy Clause permits the TCA to preempt
state and local statutes and regulations, though the court did
not squarely address Qwest’s standing. See City of Auburn v.
Qwest Corp., 260 F.3d 1160, 1175 (9th Cir. 2001) (hereinafter
“Auburn”) (observing that Supremacy Clause permits
§ 253(a) to expressly preempt local laws). See also Hillsbor-
ough County v. Automated Med. Labs., Inc., 471 U.S. 707,
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3007
712-13 (1985) (discussing preemption under the Supremacy
Clause); Shaw v. Delta Airlines, Inc., 463 U.S. 85, 96 n.14
(1983) (“A plaintiff who seeks injunctive relief from state
regulation, on the ground that such regulation is pre-empted
by a federal statute which, by virtue of the Supremacy Clause
of the Constitution, must prevail, thus presents a federal ques-
tion which the federal courts have jurisdiction under 28
U.S.C. § 1331 to resolve.”); Puerto Rico Tel. Co. v. Munici-
pality of Guayanilla, 450 F.3d 9, 16 (lst Cir. 2006) (declining
to reach whether § 253(a) creates a private right because
injunctive relief sought under Supremacy Clause); Qwest
Corp. v. City of Santa Fe, 380 F.3d 1258, 1264 (10th Cir.
2004) (hereinafter “Santa Fe”) (applying Shaw to find
Qwest’s § 253(a) preemption claim federally justiciable under
the Supremacy Clause); N.J. Payphone Ass’n, Inc. v. Town of
West New York, 299 F.3d 235, 241-42 (3d Cir. 2002) (basing
§ 253 preemption on Supremacy Clause).
[2] The Sixth Circuit has expressed concern that standing
under the Supremacy Clause is inappropriate, absent a private
statutory right of action. See TCG Detroit v. City of Dearborn,
206 F.3d 618, 622 n.1 (6th Cir. 2000). The TCG Detroit court
declined to approve a case in the District Court for the West-
ern District of Texas that, like Auburn and the district court
in this case, proceeded under the Supremacy Clause despite
finding a lack of a private right under the TCA. See AT&T
Communications v. City of Austin, 975 F. Supp. 928, 936
(W.D. Tex. 1997), vacated as moot by, 235 F.3d 241 (5th Cir.
2000). The Sixth Circuit did not disclose the precise source of
its discomfort, but a footnote raised the concern that § 253(d)
might vest in the FCC exclusive or primary jurisdiction to
preempt state and local regulations. Nevertheless, we will not
disturb our approach in Auburn because we conclude that the
availability of injunctive relief is appropriate under Shaw. See
Santa Fe, 380 F.3d at 1264.
3008 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
2. The Applicability of § 253(a) to Zoning
Ordinances Regulating Wireless Telecommunications
Facilities
The District Court twice held that § 253(a) may be
employed to assert a facial challenge to a wireless facilities
zoning ordinance. Both times the court reasoned that, on the
face of the TCA, § 253(a) addresses “State or local statute[s]
or regulation[s]” and § 332(c)(7) “decisions regarding the
placement, construction, and modification” of facilities. Thus,
while § 332(c)(7) may be used to challenge individual zoning
decisions, the court held that § 253(a) is a proper vehicle to
challenge an entire wireless facilities zoning ordinance.
a. The Distinction Between § 253(a) and
§ 332(c)(7)
The distinction between the application of § 253(a) (remov-
ing barriers) and § 332(c)(7) (preserving local zoning author-
ity), for purposes of this case, is significant. Both § 253(a) and
§ 332(c)(7)(B)(i)(II) employ similar language to limit states or
localities from prohibiting or effectively prohibiting personal
wireless service, the limitation upon which Sprint relies. Com-
pare 47 U.S.C. § 253(a) (“No State or local statute or regula-
tion, or other State or local legal requirement, may prohibit or
have the effect of prohibiting the ability of any entity to pro-
vide any interstate or intrastate telecommunications service.”)
with id. § 332(c)(7)(B)(i) (“The regulation of the placement,
construction, and modification of personal wireless service
facilities by any State or local government or instrumentality
thereof . . . (II) shall not prohibit or have the effect of prohib-
iting the provision of personal wireless services.”). Section
332(c)(7), however, further requires:
Any person adversely affected by any final action
or failure to act by a State or local government or
any instrumentality thereof that is inconsistent with
this subparagraph may, within 30 days after such
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3009
action or failure to act, commence an action in any
court of competent jurisdiction.
Id. § 332(c)(7)(B)(v).3 Moreover, the Supreme Court has
already held that claims brought under § 332(c)(7) do not sup-
port § 1983 damages or fees. See City of Rancho Palos Verdes
v. Abrams, 544 U.S. 113, 127 (2005) (holding that
“[e]nforcement of § 332(c)(7) through § 1983 would distort
the scheme of expedited judicial review and limited remedies
created by § 332(c)(7)(B)(v)”). Thus, it could be argued that
the period of limitations and certain unavailability of § 1983
damages make § 332(c)(7) a comparatively unattractive vehi-
cle to pursue a facial challenge to a wireless facilities zoning
ordinance.
b. The Novel Application of § 253(a)
The use of § 253(a) (removing barriers) to preempt an
entire wireless facilities zoning ordinance is a new and differ-
ent application of the TCA. Courts have frequently inquired
whether an individual zoning decision is contrary to
§ 332(c)(7)(B) (preserving local zoning authority). See, e.g.,
Omnipoint Communications, Inc. v. City of White Plains, 430
F.3d 529, 535 (2d Cir. 2005) (applying § 332(c)(7)(B)(i)(II)
to determine whether planning board must grant application
3
In addition to establishing a period of limitations for a claim,
§ 332(c)(7)(B) contains three substantive limitations on state or local deci-
sions regarding the placement of wireless facilities. The decision may not
“unreasonably discriminate among providers of functionally equivalent
services;” “prohibit or have the effect of prohibiting the provision of wire-
less services;” or be based on “the environmental effects of radio fre-
quency emissions to the extent that such facilities comply with the
Commission’s regulations concerning such emissions.” 47 U.S.C.
§ 332(c)(7)(B)(i)(I), (B)(i)(II) & (B)(iv). The section also contains three
procedural limitations. The decision regarding placement must be in writ-
ing, supported by substantial evidence, and reached “within a reasonable
period of time.” Id. § 332(c)(7)(B)(ii) & (iii). See U.S. Cellular Tel. of
Greater Tulsa L.L.C. v. City of Broken Arrow, 340 F.3d 1122, 1132-33
(10th Cir. 2003).
3010 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
to construct wireless tower); MetroPCS, Inc. v. City & County
of San Francisco, 400 F.3d 715, 730-31 (9th Cir. 2005)
(“MetroPCS”) (applying § 332(c)(7)(B)(i)(II) to determine
whether denial of conditional use permit imposed a “general
ban” on new wireless service providers); USCOC of Virginia
RSA #3 v. Montgomery County Bd. of Supervisors, 343 F.3d
262, 267-68 (4th Cir. 2003) (applying § 332(c)(7)(B)(i)(II) to
determine whether denial of application to construct wireless
telecommunication tower had the effect of prohibiting ser-
vice); VoiceStream Minneapolis, Inc. v. St. Croix County, 342
F.3d 818, 833 (7th Cir. 2003) (applying § 332(c)(7)(B)(i)(II)
to challenge regarding individual zoning decision). Cf.
Abrams, 544 U.S. at 120-21 (assuming, arguendo, that § 332
creates individually enforceable rights but holding § 1983
damages not available). But, facial challenges to wireless
facilities zoning ordinances are rare. But cf. Nextel Partners
Inc. v. Kingston Township, 286 F.3d 687, 693 (3d Cir. 2002)
(finding facial challenge to wireless facilities zoning ordi-
nance brought under § 332(c)(7)(B)(i) moot because of inter-
vening change in ordinance).
The lack of cases challenging zoning ordinances is unsur-
prising because of the high burden faced by a party asserting
a facial challenge. See Salerno, 481 U.S. at 745 (“A facial
challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the
Act would be valid.”). Indeed, we have observed that it may
be particularly difficult to mount a facial challenge against a
zoning ordinance:
Zoning rules—such as those that allow local authori-
ties to reject an application based on “necessity”—
may not suggest on their face that they will lead to
discrimination between providers or have the effect
of prohibiting wireless services. Thus, in most cases,
only when a locality applies the regulation to a par-
ticular permit application and reaches a decision—
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3011
which it supports with substantial evidence—can a
court determine whether the TCA has been violated.
MetroPCS, 400 F.3d at 724.
c. Statutory Interpretation of the TCA
[3] To decide whether § 253(a) (removing barriers) may be
used to invalidate a local wireless facilities zoning ordinance
we first examine the plain language of the statute. See United
States v. Ron Pair Enters., 489 U.S. 235, 241 (1989); Clark
v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162,
1168-69 (9th Cir. 2006). Courts are not, however, “bound by
the plain meaning of a statute where its literal application will
produce a result demonstrably at odds with the intention of its
drafters.” Clark, 460 F.3d at 1169 (quotation marks and cita-
tion omitted). Legislative history may inform the interpreta-
tion of a statute’s plain language “when there is clearly
expressed legislative intention contrary to that language,
which would require us to question the strong presumption
that Congress expresses its intent through the language it
chooses.” INS v. Cardoza-Fonseca, 480 U.S. 421, 433 n.12
(1987) (quotation marks and citation omitted). When a stat-
ute’s meaning is plain, a court may nevertheless avoid “a
result contrary to the statute’s purpose or lead to unreasonable
results.” United States v. Combs, 379 F.3d 564, 569 (9th Cir.
2004); see also United States v. Bahe, 201 F.3d 1124, 1133-
34 (9th Cir. 2000) (examining legislative history).
Here, the County argues that § 332(c)(7) (preserving local
zoning authority) specifically maintains local authority to
decide where and how wireless facilities are constructed and
contains a procedure for challenging those decisions. Con-
gress, therefore, must have intended, according to the County,
any challenge to a wireless facilities zoning ordinance to pro-
ceed under that section rather than the more expansive
§ 253(a), which is not limited to issues regarding wireless
facility placement. Any other reading would render the reser-
3012 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
vation of local authority described in § 332(c)(7) moot. The
County also relies on the House and Senate conferees under-
standing of § 332(c)(7), reported in the House Conference
Report accompanying the TCA:
The conference agreement creates a new section 704
[U.S. Code § 332(c)(7)] which prevents Commission
preemption of local and State land use decisions and
preserves the authority of State and local govern-
ments over zoning and land use matters except in the
limited circumstances set forth in the conference
agreement.
H.R. Conf. Rep. No. 104-458, at 207-08 (1996), reprinted in
1996 U.S.C.C.A.N. 124, 222.
i. Plain Meaning of the TCA
[4] The County’s insistence that any challenge to a local
zoning ordinance be lodged under § 332(c)(7)(B)(i)(II)
ignores the plain meaning and structure of the TCA. Section
253(a) (removing barriers) is located in Chapter 5, “Wire or
Radio Communications,” of United States Code Title 47. We
have recognized the “preemptive language [of § 253(a)] to be
clear and ‘virtually absolute’ in restricting municipalities to a
‘very limited and proscribed role in the regulation of telecom-
munications.’ ” Berkeley, 433 F.3d at 1256 (citation omitted).
Section 253 protects all common carriers, and applies to
“commercial mobile service” providers unless FCC rulemak-
ing suspends application of the section. See 47 U.S.C.
§ 332(c)(1)(A). The FCC has not exempted mobile service
providers from the protections of § 253; to the contrary, FCC
decisions apply § 253 to claims that a state or local statute
regulating wireless service providers violates the substantive
provisions of the TCA.4 See, e.g., In re Pittencrieff Communi-
4
We have not located an FCC decision directly addressing the applica-
bility of § 253 to zoning ordinances—rather than other state and local
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3013
cations, Inc., 13 F.C.C.R. 1735 (1997), aff’d sub nom. Cellu-
lar Telecomm. Indus. Ass’n v. FCC, 168 F.3d 1332 (D.C. Cir.
1999). Thus, § 253(a) applies on its face to local ordinances
that have the effect of prohibiting wireless service.
Nevertheless, the County contends that applying § 253(a)
would frustrate the purpose of § 332(c)(7) (preserving local
zoning authority). In Abrams the Supreme Court observed
that § 332(c)(7) “imposes specific limitations on the tradi-
tional authority of state and local governments to regulate the
location, construction, and modification of such facilities.”
544 U.S. at 115. In that case the Court assumed, arguendo,
that § 332(c)(7) created “individually enforceable rights,”
which could be the basis for seeking injunctive relief through
the private right of action created by § 332(c)(7)(B)(v). Id. at
120, 127. The Court went on to determine that the “expedited
judicial review and limited remedies created by
§ 332(c)(7)(B)(v)” foreclosed enforcement of § 332(c)(7)’s
limitations through § 1983. Id. at 127.
In the present litigation, however, we are asked to examine
the general provisions of § 253(a) rather than the specific lim-
ordinances such as those regulating franchising—governing wireless pro-
viders. The FCC tentatively expressed the opinion that it could invalidate
a zoning ordinance under § 253. See In re Cellular Telecomm. Indus.
Ass’n, 12 F.C.C.R. 11795, 11797 (1997) (request for comment on supple-
mental pleading cycle). In that administrative proceeding, the CTIA chal-
lenged a moratorium on the construction of telecommunications facilities.
The FCC invited comment regarding its tentative conclusion that,
Section 332(c)(7)(B)(v) does not, however, limit our authority to
review local facility siting moratoria which may constitute entry
barriers under Sections 253(d) or entry regulations under
332(c)(3).
Id. at 11796. The CTIA, however, withdrew its petition for review before
the FCC issued a final order expressing its opinion on the applicability of
§ 253. See In re Cellular Telecomm. Indus. Ass’n, 14 F.C.C.R. 9174
(1999). In a separate proceeding, the FCC examined whether a local ordi-
nance limiting the placement of payphones on private land violated
§ 253(a), and determined that it did not. See In re Cal. Payphone Ass’n,
12 F.C.C.R. 14191 (1997).
3014 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
itations of § 332(c)(7). Sprint does not resort to the substan-
tive or procedural limitations that are unique to § 332(c)(7).
Rather, the company seeks enforcement of a preemption that
is common to both § 253(a) and § 332(c)(7)(B)(i)(II). Thus,
we find the distinction that the County draws illusory. Section
253(a) lacks the period of limitations created by
§ 332(c)(7)(B)(v), but it also lacks the specific limitations that
give an individual greater latitude to challenge a zoning deci-
sion under § 332(c)(7). The choice to pursue a prima facie
challenge under § 253(a) or an individual challenge under
§ 332(c)(7) is real, but that choice does not imply that one
section must undermine the other.
[5] Interpreting § 253(a) to preempt certain local wireless
zoning ordinances does not negate the substantive and proce-
dural elements of § 332(c)(7). See Boise Cascade Corp. v.
EPA, 942 F.2d 1427, 1432 (9th Cir. 1991) (courts must make
“every effort not to interpret a provision in a manner that ren-
ders other provisions of the same statute inconsistent, mean-
ingless or superfluous”). Section 332(c)(7) prescribes a
“restrictive private remedy” for individuals seeking “[j]udicial
review of zoning decisions.” See Abrams, 544 U.S. at 121,
122. The procedure for judicial review allows individuals to
challenge “any final action or failure to act by a State or local
government or any instrumentality thereof[.]” 47 U.S.C.
§ 332(c)(7)(B)(v). A judicial proceeding must be brought
within thirty days of the state’s or locality’s action or failure
to act. Id.
[6] The County argues that permitting a facial challenge to
an entire ordinance under § 253(a) would create a “giant loop-
hole” in § 332(c)(7). But, that argument ignores § 332(c)(7)’s
preferential treatment of challenges to individual zoning deci-
sions and the additional limitations and requirements that
§ 332(c)(7) places on zoning authorities. A zoning decision
might be challenged because it does not comply with the pro-
cedural requirements of § 332(c)(7). See id. § 332(c)(7)(B)(ii)
& (iii) (decision must be in writing, supported by substantial
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3015
evidence, and reached “within a reasonable period of time.”).
The decision might also violate the substantive provisions of
the section. See id. § 332(c)(7)(B)(i)(I), (II) & (iv) (decision
may not unreasonably discriminate among providers, prohibit
or have the effect of prohibiting service, or be based on radio
emission levels that are acceptable to the FCC). Section 253,
by contrast, states only that a statute or regulation may not
prohibit or have the effect of prohibiting service. See id.
§ 253(a). The substance of the sections is therefore different
and, even though § 253(a) does not place a thirty-day period
of limitation on facial challenges, § 332(c)(7)’s period of limi-
tation for challenges to individual zoning decisions would be
left intact. Cf. Abrams, 544 U.S. at 126 (“[c]onstruing
§ 332(c)(7) . . . to create rights that may be enforced only
through the statute’s express remedy” (emphasis added)).
Ultimately, the difficulty of raising a facial challenge to a
zoning regulation, see MetroPCS, 400 F.3d at 724, would
likely prevent the scenario that the County suggests; wireless
providers could not simply avoid § 332(c)(7)’s period of limi-
tation by styling their challenges to individual zoning deci-
sions as facial challenges under § 253(a).5 Rather, § 332(c)(7)
would continue to offer a more expedient, and extensive,
basis for review.
[7] Additionally, other provisions contained in § 253 sug-
gest that Congress did not perceive a contradiction between
§ 253(a) and § 332(c)(7). Congress expressly recognized the
5
The County also argues that we have established a “more lenient stan-
dard” for successful facial challenges under § 253(a) than under
§ 332(c)(7)(B)(i), relying on a supposed conflict between dicta in
MetroPCS, 400 F.3d at 724, 725 n.3, 727 (alluding to the difficulty under
§ 332(c)(7)(B) of bringing facial challenge based on a single zoning deci-
sion) and Auburn, 260 F.3d at 1175 (discussing under § 253(a) a facial
challenge to a franchise regulation). Though we conclude here that
Sprint’s challenge to the WTO meets the criterion described in Auburn for
challenging an ordinance, we reject the argument that we have lowered the
threshold suggested by MetroPCS for a successful facial challenge predi-
cated on a zoning decision.
3016 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
potential of § 253(a) to interfere with other provisions of
§ 332. Section 253(e) exempts from preemption § 332(c)(3)
(addressing limited state regulation of wireless service rates).
See 47 U.S.C. § 253(e). Congress also excluded from
§ 253(a)’s preemptive scope state and local regulations requir-
ing “fair and reasonable” compensation for the use of public
rights-of-way and requiring telecommunications providers to
serve rural areas. See id. § 253(c), (f). Had Congress harbored
a similar concern that § 253(a) could negate the protections
allegedly extended by § 332(c)(7) it could have included a
similar exemption, but it did not do so. Because this series of
exclusions demonstrates Congress’s awareness that § 253
could affect § 332, and because the existing exclusions
address traditionally local provinces like the management of
rights-of-way, we interpret— expressio unius est exclusio
alterius —Congress’s failure to omit § 332(c)(7) from the
reach of § 253(a) as an affirmation of § 253(a)’s applicability
to state and local wireless zoning ordinances.6 See Clark, 460
F.3d at 1169; Austein v. Schwartz (In re Gerwer), 898 F.2d
730, 732 (9th Cir. 1990) (“The express enumeration indicates
that other exceptions should not be implied.”).
6
“The expression of one is the exclusion of another.” The Supreme
Court has recently reminded courts of the limits of this canon of statutory
interpretation. It cautioned that the canon “does not apply to every statu-
tory listing or grouping; it has force only when the items expressed are
members of an ‘associated group or series,’ justifying the inference that
items not mentioned were excluded by deliberate choice, not inadver-
tence.” See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (cita-
tion omitted). Here, although Sprint does not make direct reference to the
canon, it argues that we should interpret Congress’s failure to exclude
§ 332(c)(3) from § 253(a)’s preemptive scope as evidence that Congress
intended the two sections to be enforced together. Though one exclusion
is alone insufficient to apply the canon, see Chevron U.S.A. Inc. v.
Echazabal, 536 U.S. 73, 81 (2002), the series of exclusions contained in
§ 253 represents a sufficient basis to determine that Congress considered,
but rejected, excluding § 332(c)(7) from the scope of § 253(a).
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3017
ii. Legislative History of the TCA
Because the plain language of § 253(a) (removing barriers)
permits facial challenges to zoning ordinances, we need only
examine the legislative history of the TCA to confirm that the
language is not “demonstrably at odds with the intention of its
drafters.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,
571 (1982). We conclude that the legislative history of the
TCA does not indicate that Congress intended a result con-
trary to the plain reading of the statute.
Relying on the House Conference Report accompanying
the TCA, we have recognized that, “one of the primary pur-
poses of section 332(c)(7) is to protect the legitimate tradi-
tional zoning prerogatives of local governments.” MetroPCS,
400 F.3d at 727 n.5. The conferees inserted § 332(c)(7) (pre-
serving local zoning authority) to rebuff a House provision
that “would have given authority to the FCC to regulate
directly the siting of wireless communications towers” and
thus completely preempt local zoning decisions. See St. Croix,
342 F.3d at 828-29.
[8] There is no indication, however, that Congress feared
§ 253(a)’s preemption language would endanger local zoning
ordinances it intended to permit under § 332(c)(7). Indeed,
both § 253(a) and § 332(c)(7)(B)(i)(II) proscribe substantively
the same local regulations: those that prohibit or have the
effect of prohibiting personal wireless service. The Confer-
ence Report explains, in the context of § 332(c)(7), that “[i]t
is the intent of this section that bans or policies that have the
effect of banning personal wireless services or facilities not be
allowed and that decisions be made on a case-by-case basis.”
See H.R. Conf. Rep. No. 104-458, at 208. The similar lan-
guage of the sections and the Conference Report demonstrates
that § 253(a) is consistent with the substantive provision of
§ 332(c)(7)(B)(i)(II).
For purposes of this appeal, the principal distinction
between the two sections is § 332(c)(7)(B)(v)’s thirty-day
3018 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
period of limitations. The Conference Report does not explain
the intent of the limitation, though it is generally consistent
with the conferee’s requirement that the court selected by the
individual challenging the zoning decision “act expeditiously
in deciding such cases.” See H.R. Conf. Rep. No. 104-458, at
209. We have, however, found no legislative history that sug-
gests Congress intended to limit facial challenges to the
thirty-day period following some event, whether the passage
of the state or local regulation challenged or a particular zon-
ing decision applying a state or local regulation.
[9] Thus, the legislative history of § 253 and § 332(c)(7)
does not undermine our plain reading of the sections. We
need not examine the legislative history further.
B. Preemption of the WTO
We next consider whether the WTO is preempted by the
TCA. The County argues that the additional requirements
imposed by the WTO are consistent with general zoning prin-
ciples and fall short of the conditions that caused our court to
preempt the City of Auburn’s franchise ordinance. See
Auburn, 260 F.3d at 1176. Sprint contends that the WTO is
an “onerous” system of requirements that shares many of the
restrictions that amounted to an effective prohibition on wire-
less service in Auburn. Sprint also argues that the WTO is not
“competitively neutral” because it regulates wireless provid-
ers in a manner not applicable to all utility providers and lik-
ens the degree of regulation to that “usually reserved for
landfills, cemeteries and power plants,” not utilities.
The district court gleaned a set of concerns from cases dis-
cussing preemption of local ordinances under § 253(a). See
Auburn, 260 F.3d at 1176 (invalidating local franchising ordi-
nance); Santa Fe, 380 F.3d 1258 (preempting right-of-way
ordinance that, inter alia, increased rent, imposed costly new
equipment requirement, and permitted unfettered discretion);
Cox Communications PCS, L.P. v. City of San Marcos, 204
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3019
F. Supp. 2d 1260 (S.D. Cal. 2002) (considering whether regu-
lations requiring conditional use permit to install facilities in
public right-of-way violated § 253(a)); Qwest Comm. Corp. v.
City of Berkeley, 146 F. Supp. 2d 1081 (N.D. Cal. 2001) (con-
sidering whether public right-of-way ordinance violated
§ 253(a)). Informed by those opinions, the district court
focused on the WTO’s application submission requirements,
the discretion reserved to the zoning authority, the public
hearing requirements, and the criminal penalties for violation
of a use permit. The court concluded that the combination of
these factors had the effect of prohibiting wireless service in
a matter similar to the impermissible franchising ordinance in
Auburn.
[10] In Auburn we identified the factors considered by the
district court in this case. See Auburn, 260 F.3d at 1175-76.
Our concerns here are almost identical. The County’s WTO,
on its face, supplements the Zoning Ordinance by adding sub-
mission requirements to an already voluminous list. See WTO
§ 6984. Those requirements are in addition to the open-ended
discretion and threat of criminal penalties contained in the
Zoning Ordinance. The WTO itself explicitly allows the deci-
sion maker to determine whether a facility is appropriately
“camouflaged,” “consistent with community character,” and
designed to have minimum “visual impact.” See WTO
§§ 6985, 6987. We find the County’s retort—that the ele-
ments of the WTO challenged by Sprint are traditional facets
of zoning that are unobjectionable for the simple reason that
the WTO is a zoning ordinance rather than a franchise or pub-
lic right-of-way ordinance—unconvincing. Though Auburn
discussed a franchise ordinance, our concerns in this case are
largely the same. We conclude that the WTO imposes a per-
mitting structure and design requirements that presents barri-
ers to wireless telecommunications within the County, and is
therefore preempted by § 253(a).
C. Section 1983 damages and fees
Finally, we consider the availability of § 1983 damages and
fees. The district court, reversing its earlier holding, deter-
3020 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
mined that § 253(a) (removing barriers) does not create a pri-
vate right enforceable through § 1983. The court’s holding is
consistent with the Tenth Circuit’s position, Santa Fe, 380
F.3d at 1266-67 (§ 253(a) does not create a private right), but
presents a question of first impression in our circuit. Cf. Bell-
South Telecomm., Inc. v. Town of Palm Beach, 252 F.3d
1169, 1191 (11th Cir. 2001) (interpreting § 253 to create pri-
vate right to bring suit when the challenged regulation con-
cerns the use of public rights-of-way, implicating § 253(c)’s
safe-harbor); TCG Detroit, 206 F.3d at 624 (same). No other
circuit court has reached the issue. Cf. N.J. Payphone Ass’n,
299 F.3d at 241 (declining to reach whether § 253(a) created
an implied private right because parties did not contest issue).
The district courts in this circuit have overwhelmingly
rejected a private right under § 253(a). See Pacific Bell Tel.
Co. v. City of Walnut Creek, 428 F. Supp. 2d 1037, 1054
(N.D. Cal. 2006) (finding no private right under § 253(a));
Qwest Communications Corp. v. City of Berkeley, 202 F.
Supp. 2d 1085, 1096 (N.D. Cal. 2001) (finding no private
right of action under § 253(a) or § 253(c)); Pacific Bell Tel.
Co. v. City of Hawthorne, 188 F. Supp. 2d 1169, 1172-75
(C.D. Cal. 2001) (finding § 253(c) implies a private right but
that § 253(a) and (b) do not).
[11] Section 1983 “by itself does not protect anyone against
anything,” Chapman v. Houston Welfare Rights Org., 441
U.S. 600, 617 (1979), and thus the question for us is whether
§ 253(a) independently confers a right on Sprint. Our inquiry
differs from the question of whether Sprint may seek enforce-
ment of § 253(a) by bringing its preemption action under the
Supremacy Clause of the Constitution. See Golden State
Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106-08
(1989) (“Given the variety of situations in which preemption
claims may be asserted, in state court and in federal court, it
would obviously be incorrect to assume that a federal right of
action pursuant to § 1983 exists every time a federal rule of
law pre-empts state regulatory authority.” Id. at 107-08).
Here, four factors guide our inquiry into whether Congress
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3021
created a private right: (1) whether “the plaintiff is one of the
class for whose especial benefit the statute was enacted;” (2)
whether there is “any indication of legislative intent, explicit
or implicit, either to create such a remedy or to deny one;” (3)
whether it is “consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintiff;”
and (4) whether the cause of action is “one traditionally rele-
gated to state law, in an area basically the concern of the
States.” See Cort, 422 U.S. at 95. Among the Cort factors, the
Court has emphasized the second and third factors, which
together explore Congressional intent. See Northwest Airlines,
Inc. v. Transp. Workers Union of Am., 451 U.S. 77, 94
(1981); Thompson v. Thompson, 484 U.S. 174, 179 (1988);
Currier v. Potter, 379 F.3d 716, 725 (9th Cir. 2004) (recog-
nizing the Court’s subsequent interpretation of the Cort fac-
tors).
Two of our sister circuits have examined the legislative his-
tory of § 253. The Tenth and Eleventh Circuits both agree that
the history demonstrates a lack of congressional intent to
create a private right enforceable under § 1983, though they
are split on their precise interpretation. As the Eleventh Cir-
cuit explained in Palm Beach, § 253(d), as originally drafted,
permitted the FCC to preempt any state or local ordinance.
See Palm Beach, 252 F.3d at 1190. Concerned by the expense
of continually drawing local governments before the FCC,
Senators Dianne Feinstein and Dirk Kempthorne proposed an
amendment striking the FCC’s preemption authority. Id. Ulti-
mately, the Senate adopted an alternate amendment by Sena-
tor Slade Gorton that, according to the senator, permitted the
FCC to preempt state and local regulations under § 253(a) and
(b), but not (c). Senator Gorton explained that the amendment
permitted states to continue to regulate public rights-of-way
and to litigate right-of-way cases in the federal district courts.
Id. at 1191. By contrast, “if, under section (b), a city or county
makes quite different rules relating to universal service or the
quality of telecommunications services—the very heart of this
bill—then there should be a central agency at Washington,
3022 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
D.C., which determines whether or not that inhibits the com-
petition and the very goals of this bill.” Id. (quoting 141
Cong. Rec. 15984 (1995) (statement of Sen. Gorton)).
The Eleventh Circuit has interpreted this history to suggest
that § 253, as amended, “establishes different forums based
on the subject matter of the challenged statute or ordinance.”
Palm Beach, 252 F.3d at 1191. Thus, the court found that
§ 253(d) allows localities to defend § 253(a) preemption
actions in the federal district courts based on the public rights-
of-way safe-harbor, but that “[a]ll other challenges brought
under § 253 must be addressed to the FCC.” Id. The Tenth
Circuit, by contrast, interpreted the same history to suggest
that Congress was not concerned with who brought a § 253(a)
action, but rather where it was brought. See Santa Fe, 380
F.3d at 1266. Underlying this interpretation is the initial
amendment offered by Senators Feinstein and Kempthorne,
which was intended to limit the expense to local governments.
The district court in this case favored the Tenth Circuit’s
interpretation, and thus found that the legislative history con-
tains no intent to create a private right of action. To the con-
trary, a cost-conscious Congress would not have exposed
local governments to § 1983 damages that, as Sprint contends
in this case, could amount to millions of dollars.
[12] We are convinced that the legislative history demon-
strates Congress did not intend to create a private right of
action. Like the Tenth Circuit, we understand the Feinstein
and Kempthorne amendment and the Gorton amendment to
concern the venue of certain § 253 actions. See Santa Fe, 380
F.3d at 1266. The senators did not, in the course of amending
the TCA prior to enactment, question the competence of the
FCC to enforce the TCA’s preemption cause. Rather, they
expressed concern that local governments would bear a heavy
burden in defending their ordinances before the FCC in
Washington, D.C. It would be inconsistent with this concern
to find that Congress intended to expose municipalities to lia-
bility under § 1983. Because the legislative history and the
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 3023
structure imposed by the amendments to the TCA do not sup-
port the conclusion that a private right exists under § 253, we
need not examine the remaining Cort factors. Currier, 379
F.3d at 725-26 (citing In re Wash. Pub. Power Supply Sys.
Sec. Litig., 823 F.2d 1349, 1354 (9th Cir. 1987) (“Even if the
first factor were satisfied, we find that plaintiffs have failed
to clear the second and third Cort v. Ash hurdles[.]”)).
V.
When Congress passed the TCA in 1996 it expressed its
intent to remove barriers inhibiting the development of tele-
communications service. Though the act did not “federalize
telecommunications land use law,” Southwestern Bell Mobile
Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001), it estab-
lished meaningful limits beyond which state and local govern-
ments may not inhibit telecommunications by preventing the
construction of wireless communications facilities. Accord-
ingly, we determine that local zoning ordinances regulating
the construction and placement of wireless communications
facilities are within the preemptive scope of § 253(a) (remov-
ing 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) pre-
empts the WTO as a matter of law. Finally, we conclude that
§ 253(a) does not create a private right of action enforceable
under § 1983 and affirm the district court’s denial of relief
under the section.
Our decision today does not reach the permissibility of the
County’s general zoning ordinance, which was not litigated in
this case. We AFFIRM the judgment of the district court.