MetroPCS, Inc. v. City & County of San Francisco

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
METROPCS, INC., a Delaware 
Corporation,
Plaintiff-Appellant-
Cross-Appellee, Nos. 03-16759
v. 03-16760
THE CITY AND COUNTY OF SAN  D.C. No.
FRANCISCO and THE BOARD OF CV-02-3442 PJH
SUPERVISORS OF THE CITY OF SAN OPINION
FRANCISCO,
Defendants-Appellees-
Cross-Appellants.

Appeals from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
October 4, 2004—San Francisco, California
Filed March 7, 2005
Before: Richard D. Cudahy,* Susan P. Graber and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Cudahy;
Partial Concurrence and Partial Dissent by Judge Graber
*The Honorable Richard D. Cudahy, United States Circuit Judge for the
Seventh Circuit, sitting by designation.
2707
METROPCS, INC. v. SAN FRANCISCO 2711
COUNSEL
Martin L. Fineman, Davis Wright Tremaine LLP, San Fran-
cisco, California, for the plaintiff-appellant/cross-appellee.
William K. Sanders, Deputy City Attorney, San Francisco,
California, for the defendants-appellees/cross-appellants.
James A. Heard, Mackenzie & Albritton LLP, San Francisco,
California; Steven E. Grill, Devine, Millimet & Branch, P.A.,
Manchester, New Hampshire; Scott J. Grossberg, Cihigoye-
netche, Grossberg & Clouse, Rancho Cucamonga, California;
Paul J. Lawrence, Preston Gates & Ellis LLP, Seattle, Wash-
ington; and Daniel Pascucci, Fish & Richardson, P.C., San
Diego, California, and Paul L. Weisbecker, Litigation Coun-
sel, Cingular Wireless LLC, Atlanta, Georgia, for the amici
curiae.
2712 METROPCS, INC. v. SAN FRANCISCO
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 telecommunica-
tions antenna atop a city parking garage violated several pro-
visions 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 sup-
ported by substantial evidence, (3) constituted unreasonable
discrimination among providers of functionally equivalent
wireless services, (4) prohibited or had the effect of prohibit-
ing 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 sev-
eral provisions of the TCA, an exegetical effort having impli-
cations for Federal Communications Commission (FCC)
METROPCS, INC. v. SAN FRANCISCO 2713
licensing authority, wireless telecommunications companies
and municipal zoning authorities alike. The stakes of the cur-
rent dispute are especially high since this case involves sev-
eral 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 transmit-
ting 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 Boule-
vard (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 consid-
ering 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 Loca-
tion Preference 4 under the City’s Wireless Telecommunica-
tions 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
2714 METROPCS, INC. v. SAN FRANCISCO
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 ser-
vice 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 con-
struction of the MetroPCS facility at the Geary site. Consis-
tent 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 mem-
bers (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 hazard-
ous to public health.
Representatives of MetroPCS — including company man-
agers 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 cov-
erage 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.
METROPCS, INC. v. SAN FRANCISCO 2715
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 Dis-
trict around the Geary site, (2) the facility is not necessary for
the community, since there is already adequate wireless ser-
vice in the neighborhood around the Geary site, (3) the pro-
posed 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 appli-
cation 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 pro-
vide wireless services in the Richmond District.
On July 17, 2002, MetroPCS filed a complaint in the Dis-
trict 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 judg-
ment 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 evi-
dence,” (3) the Board did not unreasonably discriminate
2716 METROPCS, INC. v. SAN FRANCISCO
among providers of functionally equivalent services and (4)
the Board’s decision was not impermissibly based on con-
cerns 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 dis-
trict court denied both parties’ motions for summary judgment
as to this issue. Id. at 1015. Both parties were granted leave
to appeal the district court’s ruling to this Court, and both par-
ties now seek summary judgment on all claims.
II. JURISDICTION AND STANDARD OF REVIEW
Since the district court granted both parties’ motions to cer-
tify its order for appeal, we now have jurisdiction pursuant to
28 U.S.C. § 1292(b). We review motions for summary judg-
ment de novo. See Suzuki Motor Corp. v. Consumers Union
of United States, Inc., 330 F.3d 1127, 1131 (9th Cir.), cert.
denied, 124 S. Ct. 468 (2003); King Jewelry, Inc. v. Fed.
Express Corp., 316 F.3d 961, 963 (9th Cir. 2003). Summary
judgment should be granted when “there is no genuine issue
as to any material fact” such that “the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Suzuki Motor Corp., 330 F.3d at 1131.
To prevail on a summary judgment motion, the moving
party carries the initial burden of demonstrating to the court
that no genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party has
carried that burden, it then shifts to the nonmoving party, who
must present evidence that there is indeed a genuine issue for
trial. See id. at 323-24. All disputed issues of fact are to be
resolved in favor of the nonmoving party. Anderson, 477 U.S.
at 255.
METROPCS, INC. v. SAN FRANCISCO 2717
III. DISCUSSION
MetroPCS advances claims under several sections of the
TCA, none of which has been authoritatively construed by
this circuit.1 We address each of these claims in turn.
1
The relevant provisions of the TCA read as follows:
(7) Preservation of local zoning authority
(A) General Authority
Except as provided in this paragraph, nothing in this chap-
ter shall limit or affect the authority of a State or local
government or instrumentality thereof over decisions
regarding the placement, construction, and 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 equivalent services; and
(II) shall not prohibit or have the effect of prohibiting
the provision of personal wireless services
....
(iii) Any decision by a State or local government or instru-
mentality thereof to deny a request to place, construct, or
modify personal wireless service facilities shall be in writ-
ing 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 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
[Federal Communications] Commission’s regulations con-
cerning such emissions.
47 U.S.C. § 332(c)(7).
2718 METROPCS, INC. v. SAN FRANCISCO
A. Decision “In Writing”
[1] Under the Telecommunications Act, “[a]ny decision by
a State or local government . . . to deny a request to place,
construct, or modify personal wireless service facilities shall
be in writing.” 47 U.S.C. § 332(c)(7)(B)(iii). In the proceed-
ings below, the district court ruled that the Board’s decision
was adequately “in writing” under the TCA and granted the
City’s motion for summary judgment on this issue. 259 F.
Supp. 2d at 1009. MetroPCS now appeals this ruling and
moves for summary judgment.
The TCA’s simple directive that all local zoning decisions
adverse to wireless service providers be “in writing” seems
clear enough, and the City’s five-page written decision over-
turning the grant of MetroPCS’s CUP certainly qualifies as
“in writing” under any colloquial or common-sense under-
standing of that term. (See Board Decision, ER 12, Exh. 5.)
However, while the plain meaning of the TCA’s text supports
the district court’s ruling, the circuits are split in their inter-
pretations of the “in writing” requirement, and this Circuit has
yet to take an authoritative position on the issue. See New Par
v. City of Saginaw, 301 F.3d 390, 395 (6th Cir. 2002) (noting
the split and outlining the various interpretations); S.W. Bell
Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59 (1st Cir. 2001)
(giving a summary of the different interpretations).
At one interpretive extreme, some courts have required that
local governments explicate the reasons for their decision and
link their conclusions to specific evidence in the written
record. See, e.g., Omnipoint Communications, Inc. v. Plan-
ning & Zoning Comm’n, 83 F. Supp. 2d 306, 309 (D. Conn.
2000) (“A local zoning authority must issue a decision in
writing setting forth the reasons for the decision and linking
its conclusions to evidence in the record.”) (citations omitted);
Cellco P’ship v. Town Plan & Zoning Comm’n, 3 F. Supp. 2d
178, 184 (D. Conn. 1998) (similar standard); Ill. RSA No. 3,
Inc. v. County of Peoria, 963 F. Supp. 732, 743 (C.D. Ill.
METROPCS, INC. v. SAN FRANCISCO 2719
1997) (same). The rationale for this approach is that anything
short of this standard “ ‘places the burden on [the] Court to
wade through the record below’ ” in order to determine the
decision’s reasoning and assess its evidentiary support.
Omnipoint, 83 F. Supp. 2d at 309 (quoting Smart SMR of
N.Y., Inc. v. Zoning Comm’n, 995 F. Supp. 52, 57 (D. Conn.
1998)).
At the other end of the spectrum lies the Fourth Circuit,
which has applied a strict textualist approach to hold that
merely stamping the word “DENIED” on a zoning permit
application is sufficient to meet the TCA’s “in writing”
requirement. AT & T Wireless PCS, Inc. v. City Council, 155
F.3d 423, 429 (4th Cir. 1998); see also AT & T Wireless PCS
v. Winston-Salem Zoning Bd. Of Adjustment, 172 F.3d 307,
312-13 (4th Cir. 1999). According to the Fourth Circuit, the
bare language of the TCA requires nothing more, and so
adhering to a more stringent standard would involve “import-
ing additional language into the statute.” AT & T Wireless,
155 F.3d at 429.
[2] The First and Sixth Circuits have charted a middle
course, requiring local governments to “issue a written denial
separate from the written record” which “contain[s] a suffi-
cient explanation of the reasons for the . . . denial to allow a
reviewing court to evaluate the evidence in the record sup-
porting those reasons.” Todd, 244 F.3d at 60; Saginaw, 301
F.3d at 395-96 (adopting the Todd standard). This approach
attempts a compromise between the demands of strict textual-
ism and the requirements of more pragmatic policy values.
The Todd court observed that while the statutory language of
the TCA does not explicitly require detailed findings of fact
or conclusions of law, and while local zoning boards are often
staffed with laypersons ill-equipped to draft complex legal
decisions, written decisions must be robust enough to facili-
tate meaningful judicial review. See Todd, 244 F.3d at 59-60.
In the proceeding below, the district court ultimately chose
to apply the Todd standard and held that the Board’s written
2720 METROPCS, INC. v. SAN FRANCISCO
denial of MetroPCS’s CUP application was adequate as a
decision “in writing” under this standard. 259 F. Supp. 2d at
1009. The district court asserted that the Todd standard best
“reconciles both the statutory language and Congressional
intent of the ‘in writing’ requirement” and held that, in accor-
dance with Todd, the City “has issued a written denial sepa-
rate from the written record . . . which summarizes the
proceedings, articulates the reasons it rejected MetroPCS’[s]
application, and provides sufficient information for judicial
review in conjunction with the written record.” Id.
We agree with the district court that the Todd standard ulti-
mately strikes the most reasonable balance between the text
of the Act and the practical demands of meaningful judicial
review. While the bare language of the Act may not require
more than the briefest written disposition, it also does not
compel a strictly minimalist construction, and the purposes of
the “in writing” requirement would be ill-served by allowing
local zoning authorities to issue the kind of opaque, unela-
borated ruling approved by the Fourth Circuit in AT & T
Wireless v. City Council. Indeed such a minimalist approach
is in direct tension with the Act’s requirement — discussed
more fully in the next section — that all local zoning deci-
sions be supported by substantial evidence contained in a
written record. 47 U.S.C. § 332(c)(7)(B)(iii). If such an evi-
dentiary review is to be undertaken at all, courts must at least
be able to ascertain the basis of the zoning decision at issue;
only then can they accurately assess the evidentiary support
it finds in the written record. Therefore, the zoning decision
must be sufficiently elaborated to permit this assessment.
[3] Similarly, the text of the TCA does not compel the more
demanding standard outlined in Omnipoint, 83 F. Supp. 2d at
309, and we find persuasive the Todd court’s observation that
such a standard might place an unduly heavy burden on lay
zoning boards. As a general matter, we see no reason to insist
upon a standard more exacting than is required to facilitate
meaningful judicial review. We therefore adopt the Todd stan-
METROPCS, INC. v. SAN FRANCISCO 2721
dard and hold that the TCA requires local zoning authorities
to issue a written decision separate from the written record
which contains sufficient explanation of the reasons for the
decision to allow a reviewing court to evaluate the evidence
in the record supporting those reasons.
[4] As to the merits of the case at bar, we are persuaded that
the district court did not err in granting the City’s motion for
summary judgment as to this claim under the Todd standard.
As the district court correctly noted, the Board of Supervisors
issued a five-page written decision, separate from the record,
which summarized the facts of the dispute, recounted the pro-
ceedings it conducted, articulated its reasons for overturning
the Commission’s grant of the CUP and explained the eviden-
tiary basis for its ruling. Whatever else might be said about
the decision or its reasoning, it does contain sufficient expla-
nation to enable judicial evaluation of the evidentiary support
for its rationale. In fact MetroPCS itself devotes many pages
of its brief to discussing and critiquing the decision’s reason-
ing and evidentiary support.2
[5] In light of all these considerations, we affirm the district
court’s ruling that the Board’s decision was properly “in writ-
ing” under § 332(c)(7)(B)(iii) of the TCA.
2
Incidentally, we believe that the Board’s decision would arguably pass
muster under any of the aforementioned legal standards. It easily passes
the Fourth Circuit’s test, under which merely stamping the application
“DENIED” is sufficient. AT & T Wireless, 155 F.3d at 429. And with
regard to the more stringent test outlined in Omnipoint and its ilk, the
Board’s decision “[sets] forth the reasons for the decision” and does at
least a passable job of “linking its conclusions to evidence in the record.”
Omnipoint, 83 F. Supp. 2d at 309. While the Board’s decision is phrased
in somewhat general terms, it does make reference to “the record,”
recounts the testimony offered during its hearing on the issue, articulates
its findings and discusses its objections to many of the specific findings
of the Planning Commission. Thus although the decision does not offer
formal findings of fact and conclusions of law as a full-blown judicial
decision might, it is not clear that the Omnipoint standard demands such
rigor.
2722 METROPCS, INC. v. SAN FRANCISCO
B. Substantial Evidence
[6] In addition to requiring that all local zoning decisions
be “in writing,” the TCA also mandates that these decisions
be “supported by substantial evidence contained in a written
record.” 47 U.S.C. § 332(c)(7)(B)(iii). In the proceedings
below, the district court granted the City’s motion for sum-
mary judgment on this issue, ruling that the Board’s determi-
nation that the proposed facility is not necessary for the
community was supported by substantial evidence. 259 F.
Supp. 2d at 1011.
In stark contrast to virtually every other aspect of this case,
there appears to be universal agreement among the circuits as
to the substantive content of this requirement. While the term
“substantial evidence” is not statutorily defined in the Act, the
legislative history of the TCA explicitly states, and courts
have accordingly held, that this language is meant to trigger
“the traditional standard used for judicial review of agency
decisions.” H.R. Conf. Rep. No. 104-458, at 208 (1996); see
also Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490,
494 (2d Cir. 1999) (holding that “substantial evidence”
implies this traditional standard); Preferred Sites, LLC v.
Troup County, 296 F.3d 1210, 1218 (11th Cir. 2002) (same).
[7] However, the substantial evidence inquiry does not
require incorporation of the substantive federal standards
imposed by the TCA, but instead requires a determination
whether the zoning decision at issue is supported by substan-
tial evidence in the context of applicable state and local law.
As our sister circuits have recognized, the TCA “does not
affect or encroach upon the substantive standards to be
applied under established principles of state and local law.”
Oyster Bay, 166 F.3d at 494 (internal quotation marks omit-
ted) (emphasis added). “ ‘Substantial evidence’ review under
the TCA does not create a substantive federal limitation upon
local land use regulatory power . . . .” Todd, 244 F.3d at 58
(citations omitted); see also Voicestream Minneapolis, Inc. v.
METROPCS, INC. v. SAN FRANCISCO 2723
St. Croix County, 342 F.3d 818, 830 (7th Cir. 2003) (same
rule) (citing Todd). In other words, we must take applicable
state and local regulations as we find them and evaluate the
City decision’s evidentiary support (or lack thereof) relative
to those regulations. If the decision fails that test it, of course,
is invalid even before the application of the TCA’s federal
standards.
This approach serves several purposes. First, it enables us
to avoid unnecessarily reaching the federal questions of
whether a zoning decision violates the substantive provisions
of the TCA. If a zoning board’s decision, reached under its
own rules, is not supported by substantial evidence, then we
need not consider the application of the anti-prohibition or
anti-discrimination prongs of the statute. Second, local regula-
tions standing alone may offer little insight into whether they
violate the substantive requirements of the TCA. Zoning rules
— such as those that allow local authorities to reject an appli-
cation 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 particu-
lar permit application and reaches a decision — which it sup-
ports with substantial evidence — can a court determine
whether the TCA has been violated.
The dissent disagrees with this approach, arguing that any
zoning regulation — or application of such a regulation —
based on considerations of community “necessity” by its
terms discriminates against new providers, cannot be squared
with the TCA’s anti-discrimination provision, 47 U.S.C.
§ 332(c)(7)(B)(i)(II), and is therefore, ipso facto, not sup-
ported by substantial evidence. Yet such an interpretation may
thwart congressional intent concerning the independence
accorded local zoning authorities under the TCA. As the dis-
sent recognizes, the only direct substantive restriction the Act
places on local zoning authorities is the proscription of deci-
sions based on concerns over radio frequency emissions con-
2724 METROPCS, INC. v. SAN FRANCISCO
tained in § 332(c)(7)(B)(iv). (See discussion of this provision,
infra in Section III-F.) Had Congress desired to proscribe zon-
ing decisions based on community necessity — or, for that
matter, any other disfavored rationale — we are confident that
it could have done so. Yet as the foregoing legal precedents
and legislative history demonstrate, Congress instead intended
that the traditional substantive prerogatives of local zoning
authorities not be disturbed.
Perhaps more fundamentally, the dissent’s conflation of the
TCA’s substantive anti-discrimination provision, 47 U.S.C.
§ 332(c)(7)(B)(i)(II), with its procedural “substantial evi-
dence” requirement threatens to render the “substantial evi-
dence” provision superfluous. Rather than review a zoning
decision for basic evidentiary support, the dissent would
require, as a threshold matter, that we review the decision for
discriminatory rationale. But regardless of the rationale
employed, zoning decisions must still satisfy the TCA’s anti-
discrimination provision, id., which prohibits actual discrimi-
nation. If similarly situated providers are not treated differ-
ently in fact, there is little reason to obviate a zoning decision
based purely on an impermissible “necessity” rationale.
[8] Having thus delimited the scope of our substantial evi-
dence inquiry, we may now turn to the merits of the question
before us. The most authoritative and oft-cited elaboration of
the TCA’s substantial evidence standard comes from the Sec-
ond Circuit in Oyster Bay, where the court explained that
“substantial evidence” implies “less than a preponderance, but
more than a scintilla of evidence. ‘It means such relevant evi-
dence as a reasonable mind might accept as adequate to sup-
port a conclusion.’ ” 166 F.3d at 494 (quoting Universal
Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)). This for-
mulation has been adopted by every circuit that has had occa-
sion to consider the issue. See, e.g., St. Croix County, 342
F.3d at 830 (7th Cir. 2003); United States Cellular Tel. of
Greater Tulsa, L.L.C. v. City of Broken Arrow, 340 F.3d
1122, 1133 (10th Cir. 2003); Troup County, 296 F.3d at 1218
 METROPCS, INC. v. SAN FRANCISCO 2725
(11th Cir.); Second Generation Props., L.P. v. Town of Pel-
ham, 313 F.3d 620, 627-28 (1st Cir. 2002); 360o Communica-
tions Co. of Charlottesville v. Bd. of Supervisors, 211 F.3d 79,
83 (4th Cir. 2000).
Review under this standard is essentially “deferential,”
such that courts may “neither engage in [their] own fact-
finding nor supplant the Town Board’s reasonable determina-
tions.” Oyster Bay, 166 F.3d at 494. In applying this standard
to the facts of a given case, the written record must be viewed
in its entirety, including all evidence supporting both parties,
and “local and state zoning laws govern the weight to be
given the evidence.” Id. As mentioned earlier, these baseline
rules are solidly established, and the parties here do not dis-
pute them.
The upshot is simple: this Court may not overturn the
Board’s decision on “substantial evidence” grounds if that
decision is authorized by applicable local regulations and sup-
ported by a reasonable amount of evidence (i.e., more than a
“scintilla” but not necessarily a preponderance). In the pro-
ceeding below, the district court correctly identified the pre-
vailing legal standard discussed above, 259 F. Supp. 2d at
1009, and granted the City’s motion for summary judgment
on this issue, ruling that the City’s determination that the
Richmond District community did not need the MetroPCS
antenna was (1) authorized by local zoning regulations and
(2) supported by substantial evidence, id. at 1010-11. This rul-
ing was legally correct.
[9] First, the San Francisco Planning Code explicitly autho-
rizes the consideration of community need in evaluating con-
ditional use permit applications. San Francisco Planning Code
§ 303(c)(1) (directing the City Planning Commission to con-
sider whether “the proposed use . . . is necessary or desirable
for, and compatible with, the neighborhood or the communi-
ty”) (emphasis added). Thus, the necessity-based portion of
the Board’s decision was clearly authorized by local zoning
2726 METROPCS, INC. v. SAN FRANCISCO
regulations. Even MetroPCS acknowledges this much.
Accordingly, the only remaining issue concerns whether the
Board’s “necessity” conclusion was supported by substantial
evidence.3 A perusal of the record demonstrates that it was.
The Board’s inquiry into this issue was not a model of thor-
oughness or rigor,4 but the record does clearly establish that
the Richmond District is amply served by at least five other
major wireless service providers and thus did not “need” the
proposed Geary facility. One of MetroPCS’s own representa-
tives testified before the Board that “every carrier in San
Francisco has coverage along Geary [Boulevard],” and reiter-
ated that “every carrier has an antenna in this neighborhood.”
Another MetroPCS representative testified that “we’ve got
Verizon, Sprint, AT & T, Singular [sic], Nextel, all in the very
same vicinity [of the Geary site],” adding later that Sprint and
Verizon “have great coverage. They have an excellent foot-
hold in the [Geary] area.” Indeed MetroPCS argued before the
Board that it needed a facility at the Geary site precisely
because it had to compete with other providers who had cov-
erage in the area.
3
MetroPCS cites Nextel Communications of Mid-Atlantic, Inc. v. Town
of Wayland, 231 F. Supp. 2d 396, 406-07 (D. Mass. 2002), for the proposi-
tion that local zoning regulations are not protected to the extent that they
violate the TCA. This assertion reflects a misreading of Wayland. The pas-
sage cited by MetroPCS actually speaks to the anti-prohibition prong of
the TCA. While the TCA is apparently agnostic as to the substantive con-
tent of local zoning ordinances, zoning decisions may be invalidated if
they unreasonably discriminate among providers or prohibit the provision
of wireless services. See discussion of the prohibition and discrimination
issues, infra.
4
Particularly alarming is the general lack of reference to the City Plan-
ning Commission’s decision to grant MetroPCS the CUP initially. At the
least, one certainly wonders why the Planning Commission concluded,
contrary to the Board’s decision, that the MetroPCS site was “necessary
and desirable” for the community. Unfortunately the Board did not shed
any light on this issue, and, since at least one of its findings is supported
by substantial evidence, the TCA provides no basis for remedying such
procedural shortcomings. As discussed above, congressional intent to pre-
serve local zoning authority — however constituted — is clear.
METROPCS, INC. v. SAN FRANCISCO 2727
These statements by MetroPCS were buttressed by testi-
mony and numerous written petitions from local residents,
including Robert Blum (the resident actually challenging the
CUP grant), reporting that the Richmond District already
enjoyed excellent wireless coverage. The record also contains
a site map showing the locations of SprintPCS facilities in the
Richmond District, including one antenna installation just 0.2
miles from the proposed Geary site. Taken in its totality, this
evidence, including unequivocal statements by MetroPCS
itself, constitutes at least a showing that “a reasonable mind
might accept” as adequate. The “substantial evidence” provi-
sion of the TCA requires nothing more.
[10] In briefing this issue, both parties spend considerable
time discussing the evidence supporting the Board’s findings
on neighborhood character and the aesthetic impact of the
proposed facility. MetroPCS in particular spends considerable
time arguing that residents’ aesthetic concerns are speculative
or unsubstantiated. This may be true. Yet, since the Board’s
finding on community necessity was authorized by local regu-
lations and supported by substantial evidence, it is unneces-
sary to consider the evidence supporting other potential
grounds for the City’s decision. See e.g., Oyster Bay, 166 F.3d
at 495 (stating that the court must “determine whether the
Board possessed substantial evidence on one or both of [its
permissible] grounds” for a zoning permit denial). The district
court was correct in taking this analytical approach as well,
relegating these ancillary concerns to a footnote. 259 F. Supp.
2d at 1011 n.6.
[11] As the district court below identified the correct pre-
vailing legal standard and applied it properly, we affirm the
district court’s ruling that the Board’s decision was supported
by “substantial evidence” as required by the TCA.
C. Discrimination Claim
[12] In addition to its more concrete procedural require-
ments, the TCA also mandates that “[t]he regulation of the
2728 METROPCS, INC. v. SAN FRANCISCO
placement, construction, and modification of personal wire-
less service facilities by any State or local government or
instrumentality thereof — (I) shall not unreasonably discrimi-
nate among providers of functionally equivalent services.” 47
U.S.C. § 332(c)(7)(B)(i)(I) (emphasis added). As the bulk of
the cases on this issue have recognized, by using this lan-
guage “the Act explicitly contemplates that some discrimina-
tion ‘among providers of functionally equivalent services’ is
allowed. Any discrimination need only be reasonable.” AT &
T Wireless, 155 F.3d at 427; see also Omnipoint Communica-
tions Enters., L.P. v. Zoning Hearing Bd., 331 F.3d 386, 395
(3d Cir.) (citing AT & T Wireless, 155 F.3d at 427), cert.
denied, 124 S. Ct. 1070 (2003); Nextel W. Corp. v. Unity
Township, 282 F.3d 257, 267 (3d Cir. 2002) (same); Sprint
Spectrum, L.P. v. Willoth, 176 F.3d 630, 638 (2d Cir. 1999)
(same).
More specifically, most courts have held that discrimina-
tion based on “traditional bases of zoning regulation” such as
“preserving the character of the neighborhood and avoiding
aesthetic blight” are reasonable and thus permissible. AT & T
Wireless, 155 F.3d at 427; see also Willoth, 176 F.3d at 639
(same) (citing AT & T Wireless). Aside from reflecting the
plain meaning of the TCA’s text, this interpretation is also
supported by the Act’s legislative history. The House Confer-
ence Report on the TCA explained the Act’s nondiscrimina-
tion clause as follows:
The conferees also intend that the phrase “unreason-
ably discriminate among providers of functionally
equivalent services” will provide localities with the
flexibility to treat facilities that create different
visual, aesthetic, or safety concerns differently to the
extent permitted under generally applicable zoning
requirements even if those facilities provide func-
tionally equivalent services. For example, the confer-
ees do not intend that if a State or local government
grants a permit in a commercial district, it must also
METROPCS, INC. v. SAN FRANCISCO 2729
grant a permit for a competitor’s 50-foot tower in a
residential district.
H.R. Conf. Rep. No. 104-458, at 208 (1996) (emphasis added).5
In keeping with these baseline principles, almost all federal
courts considering such cases have ruled that providers alleg-
ing unreasonable discrimination must show that they have
been treated differently from other providers whose facilities
are “similarly situated” in terms of the “structure, placement
or cumulative impact” as the facilities in question. APT Pitts-
burgh Ltd. P’ship v. Penn Township Butler County, 196 F.3d
469, 480 n.8 (3d Cir. 1999) (internal quotation marks omitted)
(emphasis added); Willoth, 176 F.3d at 643 (“[I]t is not unrea-
sonably discriminatory to deny a subsequent application for a
cell site that is substantially more intrusive than existing cell
sites by virtue of its structure, placement or cumulative
impact.”); see also Omnipoint, 331 F.3d at 395 (“Permitting
the erection of a communications tower in a business district
does not compel the [zoning board] to permit a similar tower
at a later date in a residential district.”); Unity Township, 282
F.3d at 267 (discrimination claim “ ‘require[s] a showing that
the other provider is similarly situated’ ”) (quoting Penn
Township, 196 F.3d at 480 n.8). In fact, the sole district court
case from the Ninth Circuit on this issue holds that a mere
increase in the number of wireless antennas in a given area
over time can justify differential treatment of providers. Air-
touch Cellular v. City of El Cajon, 83 F. Supp. 2d 1158, 1166
(S.D. Cal. 2000).
5
Indeed one of the primary purposes of section 332(c)(7) is to protect
the legitimate traditional zoning prerogatives of local governments. This
section of the Act is actually entitled “Preservation of local zoning author-
ity” and states as its baseline principle that, “[e]xcept as provided in this
paragraph, nothing in this chapter shall limit or affect the authority of a
State or local government . . . over decisions regarding the placement, con-
struction, and modification of personal wireless service facilities.” 47
U.S.C. § 332(c)(7)(A).
2730 METROPCS, INC. v. SAN FRANCISCO
In ruling that the City’s decision here did not unreasonably
discriminate against MetroPCS, the district court employed a
somewhat confusing and contradictory analysis. The court
first stated that, in order to prevail, MetroPCS must demon-
strate that the City treated it differently from one of its com-
petitors for a “functionally identical request.” 259 F. Supp. 2d
at 1012 (emphasis added). The district court cites Sprint Spec-
trum, 244 F. Supp. 2d at 117, for this proposition, though the
court’s formulation appears to reflect a misreading of that
case. The court in Sprint Spectrum actually applied the
broader legal principle that “a local board may reasonably
consider the location of the cell tower when deciding . . .
whether to approve the application for construction.” Id.
Later in its opinion, the district court stated that MetroPCS
must demonstrate that “other providers have been permitted
to build similar structures on similar sites while it has been
denied.” 259 F. Supp. 2d at 1012 (emphasis added). As dis-
cussed above, given that the wireless providers in question
provide “functionally equivalent services” (which is undis-
puted in this case), “similarly situated” is the prevailing legal
standard on the discrimination issue. The district court then
proceeded to find that the facilities of other service providers
in the Richmond District are “differently situated from
MetroPCS because they have sought to place their antenna
structures at different locations within the district.” Id. Thus
while it is not clear whether the decision below ultimately
turned on the prevailing “similarly situated” analysis (similar
structures on similar sites) or the district court’s own “func-
tionally identical request” standard, it appears that the court
would have ruled for the City under either test. This ruling
was error.
First, the district court frames the relevant legal inquiry too
narrowly. For the policy reasons discussed above, the “simi-
larly situated” standard seems to strike an appropriate balance
between Congress’s twin goals of promoting robust competi-
tion and preserving local zoning authority. The district court’s
METROPCS, INC. v. SAN FRANCISCO 2731
formulation of the discrimination inquiry, under which locali-
ties may deny use permits any time the relevant antenna struc-
tures are at “different locations,” id., appears unduly narrow.
Unless competing providers seek to place virtually identical
antennas at the very same location or on the same specific
structure, no wireless service provider could ever carry its
burden to show discrimination under this test. Such a standard
would give localities far too much leeway in rejecting func-
tionally similar requests by competing providers and would
thwart the competition that the TCA sought to facilitate.
[13] As for the district court’s final determination that the
City did not, as a matter of law, unreasonably discriminate
against MetroPCS, this too was error. The factual record is
equivocal on the discrimination issue. While the Board’s deci-
sion appears to have been authorized by the City Planning
Code, it is not entirely clear whether the proposed MetroPCS
site is “similarly situated” to other approved facilities in the
Richmond District. The record shows that there is a compet-
ing SprintPCS wireless facility, also on Geary Boulevard, just
two blocks (~0.2 miles) from the rejected MetroPCS site.
MetroPCS also alleges that, shortly after it denied Metro-
PCS’s application for a CUP at the Geary site, the Board
approved the installation of a Cingular Wireless facility on a
rooftop in the same neighborhood. These facts at least suggest
a real possibility of discrimination between similar sites.
While the Board maintains that the other existing wireless
facilities in the Richmond District were approved because
they were placed at a more ideal location, see 259 F. Supp.
2d at 1012, the record contains no systematic comparison of
the sites in question. Similarly, while the record also contains
photo simulations of the proposed MetroPCS site, (ER 31
Exh. 1), there are no similar photographs of competing facili-
ties in the area. In short, while it is undisputed that there are
other wireless facilities in the same neighborhood, there
appears to have been no detailed inquiry into the similarity of
these existing facilities to the proposed MetroPCS facility in
2732 METROPCS, INC. v. SAN FRANCISCO
terms of “structure, placement or cumulative impact.” See
again Penn Township, 196 F.3d at 480 n.8 (internal quotation
marks omitted).
[14] Given the foregoing, MetroPCS has presented suffi-
cient evidence to create an issue of fact as to the discrimina-
tion claim. Since there is no conclusive evidence as to how
MetroPCS’s proposed facility compares to the existing sites
of its competitors in terms of “structure, placement or cumula-
tive impact,” substantial questions of fact remain as to
whether the Board of Supervisors unreasonably discriminated
against MetroPCS, and thus neither party is entitled to judg-
ment as a matter of law.6 We accordingly reverse the district
court’s grant of summary judgment in favor of the City on
6
In its brief, MetroPCS asserts that the City’s community necessity
rationale “constitutes unreasonable discrimination against new providers
and is antithetical to the pro-competitive goals of Section 332(c)(7)(B).”
In support of this argument, MetroPCS relies on Western PCS II Corp. v.
Extraterritorial Zoning Authority, 957 F. Supp. 1230, 1237-38 (D.N.M.
1997), and Sprint Spectrum, L.P v. Town of Easton, 982 F. Supp. 47, 51
(D. Mass. 1997), both of which ruled that local governments may not deny
wireless providers permission to construct facilities merely because they
believe that existing wireless service is adequate. However, as the district
court notes in its opinion below, 259 F. Supp. 2d at 1012 n.8, both of these
decisions turned on the local government’s disregard of relevant evidence
and improper application of relevant zoning laws. And while the City does
little to directly address MetroPCS’s broader argument that necessity-
based zoning decisions are inherently discriminatory against new market
entrants, such an argument is of limited persuasiveness.
As discussed above, the Act specifically preserves traditionally local
zoning authority over siting decisions, and it has been consistently held
that the TCA does not intrude upon the substantive content of local zoning
rules. Oyster Bay, 166 F.3d at 494. In other words, far from prohibiting
zoning decisions based on redundancy or community “necessity,” the
TCA itself appears to be totally agnostic on this issue. Moreover, a purely
aesthetic determination that a certain neighborhood is blighted with too
many wireless antennas — which is specifically permitted in the prevail-
ing case law and anticipated in the legislative history of the TCA — may
similarly disadvantage new market entrants who wish to add new facilities
in the neighborhood.
METROPCS, INC. v. SAN FRANCISCO 2733
this issue and remand the case for further proceedings to
determine whether the proposed MetroPCS facility was simi-
larly situated to competing facilities approved by the City and,
if so, whether the City discriminated against MetroPCS with
respect to the proposed and the competing facilities.
D. Prohibition Claim
[15] Section 332 of the TCA provides that “[t]he regulation
of the placement, construction, and modification of personal
wireless service facilities by any State or local government or
any instrumentality thereof — (II) shall not prohibit or have
the effect of prohibiting the provision of personal wireless
services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). MetroPCS alleges
that, in denying its application for a CUP, the City has vio-
lated this provision by both imposing a “general ban” on new
service providers in the Richmond District and effectively
prohibiting the provision of wireless services by preventing
MetroPCS from filling a “significant gap” in its coverage.
In the proceedings below, the district court held that the
City’s decision did not amount to a “general ban” on wireless
services, but that material questions of fact remain as to
As for the case at bar, the claim of discrimination against new providers
also rings a bit hollow coming from MetroPCS, since the record shows
that it has been allowed to construct some 30 sites in the city of San Fran-
cisco, including 18 facilities under discretionary CUPs. While this does
not necessarily establish that MetroPCS has been allowed to realize seam-
less coverage in the city, it certainly does refute any claim of discrimina-
tion against new providers as such.
More to the point, Congress has already considered the competing inter-
ests of local zoning authorities and wireless providers (both new and old),
and has constructed a statutory scheme to accommodate both. As will be
discussed more fully below, while the TCA is agnostic as to the substan-
tive content of local regulations, localities are nonetheless constrained by
section 332(c)(7)(B)(i)(I) and (II) of the TCA, which preclude them from
unreasonably discriminating against competing providers or (effectively)
prohibiting the provision of wireless services. See discussion infra at Sec-
tion III, Part E.
2734 METROPCS, INC. v. SAN FRANCISCO
whether the denial of MetroPCS’s CUP application perpetu-
ates a “significant gap” in MetroPCS’s coverage. 259 F. Supp.
2d at 1015. We find the district court’s reasoning persuasive,
and we affirm all aspects of its holding as to this claim.
1. General Ban
A city-wide general ban on wireless services would cer-
tainly constitute an impermissible prohibition of wireless ser-
vices under the TCA. In fact, this is the only circumstance
under which the Fourth Circuit will find an impermissible
prohibition under the statute. See AT & T Wireless, 155 F.3d
at 428 (holding that only “blanket prohibitions” and “general
bans or policies” affecting all wireless providers count as
effective prohibition of wireless services under the TCA).
Under this rule, which is based on a strict plain meaning anal-
ysis, individual zoning decisions or persistent coverage gaps
can never constitute a prohibition under the statute — courts
must ask only whether local governments have (effectively)
banned wireless services altogether. Id. The City asks us to
adopt the Fourth Circuit’s interpretation as well, noting that
the House Conference Committee’s Report on the TCA seems
to anticipate a narrow, bare-bones approach: “It is the intent
of this section that bans or policies that have the effect of ban-
ning personal wireless services or facilities not be allowed
and that decisions be made on a case-by-case basis.” H.R.
Conf. Rep. No. 104-458, at 208 (1996).
However, for a variety of reasons, we decline to adopt the
Fourth Circuit rule on this point. The language of the TCA,
while sparse, does not dictate such a narrow interpretation
even under a plain meaning approach. As the First Circuit has
observed, given the current structure of the wireless services
market, “[t]he fact that some carrier provides some service to
some consumers does not in itself mean that the town has not
effectively prohibited services to other consumers.” Second
Generation Props., 313 F.3d at 634. Additionally the Fourth
Circuit’s interpretation, by permitting all but the most restric-
METROPCS, INC. v. SAN FRANCISCO 2735
tive local zoning policies, could actually thwart Congress’s
twin goals of encouraging competition in the wireless services
industry and facilitating efficient use of bandwidth. The
touchstone of our prohibition analysis is therefore not limited
to blanket bans or general policies prohibiting wireless ser-
vices. The TCA framework requires a more discriminating
inquiry. (See our discussion of the “Significant Gap” analysis,
infra.)
Turning briefly to the merits, the record offers no support
for MetroPCS’s assertion that the City has imposed a “general
ban” on wireless services, against new providers or anyone
else. Aside from the fact that it would be extremely dubious
to infer a general ban from a single CUP denial, the record
reveals that the City has been receptive to wireless providers
in general and MetroPCS in particular. It is undisputed that
the City has authorized the installation of some 2,000 anten-
nas at about 450 sites around the city, including 30 MetroPCS
sites. This undercuts any assertion that the City has placed a
general ban on new market entrants. The district court made
virtually identical observations in its own finding that no gen-
eral ban exists, 259 F. Supp. 2d at 1013, and we uphold this
ruling as entirely correct.
2. Service Gap
Several circuits have held that, even in the absence of a
“general ban” on wireless services, a locality can run afoul of
the TCA’s “effective prohibition” clause if it prevents a wire-
less provider from closing a “significant gap” in service cov-
erage. This inquiry generally involves a two-pronged analysis
requiring (1) the showing of a “significant gap” in service
coverage and (2) some inquiry into the feasibility of alterna-
tive facilities or site locations. Currently there is a clear circuit
split as to what constitutes a “significant gap” in coverage,
and the Ninth Circuit has yet to rule on the issue.7
7
The high stakes involved for both wireless service providers and local
governments are reflected in the fact that most of the Amicus briefs filed
in this case focus on this issue.
2736 METROPCS, INC. v. SAN FRANCISCO
(a) Definition of “Significant Gap”
The test employed by the Second and Third Circuits holds
that a “significant gap” in service exists only if no provider
is able to serve the “gap” area in question. See Omnipoint,
331 F.3d at 398; Unity Township, 282 F.3d at 265; Penn
Township, 196 F.3d at 478-80; Willoth, 176 F.3d at 643. One
district court in the Ninth Circuit has also adopted this test. El
Cajon, 83 F. Supp. 2d at 1167. This test is sometimes referred
to as the “one provider” rule since, if any single provider
offers coverage in a given area, localities may preclude other
providers from entering the area (as long as the preclusion is
a valid, nondiscriminatory zoning decision that satisfies the
other provisions of the TCA).
This rule has been touted as proceeding from the consum-
er’s perspective rather than the individual service provider’s
perspective, which the Third Circuit argues is more in keeping
with the regulatory goals of the TCA — as long as some pro-
vider offers service in the area, consumers will be adequately
served and the TCA’s goal of establishing nationwide wire-
less service will be achieved. See Omnipoint, 331 F.3d at 397-
98; Unity Township, 282 F.3d at 265. Under this view, the
TCA protects only the individual user’s ability to receive ser-
vice from one provider or another; it does not protect each
service provider’s ability to maintain full coverage within a
given market. Omnipoint, 331 F.3d at 397-98; Unity Town-
ship, 282 F.3d at 265; cf. Willoth, 176 F.3d at 641-43.
[16] The First Circuit has recently rejected the “one provid-
er” approach and held that a local regulation creates a “signif-
icant gap” in service (and thus effectively prohibits wireless
services) if the provider in question is prevented from filling
a significant gap in its own service network. See Second Gen-
eration Props., 313 F.3d at 631-33. This approach formally
takes the perspective of the individual service provider in
assessing coverage gaps, but, as the Second Generation Prop-
erties court persuasively explains, this approach actually bet-
METROPCS, INC. v. SAN FRANCISCO 2737
ter serves both individual consumers and the policy goals of
the TCA.8 The Second Generation Properties court notes that
the TCA “aims to secure lower prices and better service for
consumers by opening all telecommunications markets to
competition.” Id. at 631 (citing H.R. Conf. Rep. No. 104-458,
at 113 (1996)). The court then warns against the dysfunctional
implications of the Second and Third Circuits’ “one provider
rule”:
A flat “any service equals no effective prohibi-
tion” rule would say that a town could refuse permits
to build the towers necessary to solve any number of
different coverage problems . . . . Such a rule would
be highly problematic because it does not further the
interests of the individual consumer. To use an
example from this case, it is of little comfort to the
customer who uses AT & T Wireless (or Voice-
stream, Verizon, Sprint, or Nextel) who cannot get
service along the significant geographic gap which
may exist along Route 128 that a Cingular Wireless
customer does get some service in that gap . . . . The
result [of such a rule] would be a crazy patchwork
quilt of intermittent coverage. That quilt might have
the effect of driving the industry toward a single car-
rier. When Congress enacted legislation to promote
the construction of a nationwide cellular network,
such a consequence was not, we think, the intended
result.
Id. at 633 (footnote omitted). In short, the First Circuit’s mul-
tiple provider rule better facilitates the robust competition
8
It should be noted that there is a difference between the interests of
local residents — who may prefer fewer providers to limit the number of
antennas in the area — and those of wireless service subscribers who may
be frustrated that their particular provider cannot offer coverage in a given
neighborhood. Both of these may be categorized as the “consumer per-
spective,” though they lead to different results. Our use of the term “con-
sumer” in the discussion here refers to wireless service subscribers.
2738 METROPCS, INC. v. SAN FRANCISCO
which Congress sought to encourage with the TCA, and it
better accommodates the current state of the wireless services
market. The district court also found these arguments persua-
sive, since it formally adopted the First Circuit rule in its deci-
sion below. 259 F. Supp. 2d at 1013-14.
For its part, MetroPCS does not object to the district court’s
adoption of the First Circuit “multiple provider rule” (in fact
MetroPCS and its Amici argue strenuously in favor of the
First Circuit’s approach), though it argues that the City’s zon-
ing “criteria,” which allow for CUP denials based on findings
that a given facility is “not necessary” for the community, are
“impossible for any non-incumbent carrier to meet” and thus
constitute an effective prohibition of wireless services. Once
again, the large number of permits already granted by the City
— to providers new and old — belies this assertion.
Additionally, we emphasize that MetroPCS’s concerns
regarding zoning decisions based on “necessity” can be
accommodated by the First Circuit’s version of the significant
gap test. Under this rule, zoning decisions explicitly based on
redundancy of service are not per se invalid, but they are sub-
ject to the crucial limitations that (1) they cannot discriminate
between similarly situated facilities and (2) they cannot result
in a significant gap in service for the provider in question. As
will be discussed shortly, the First Circuit’s interpretation also
fully meets the preemption and supremacy arguments
advanced by MetroPCS.9
[17] Having considered both the avowed policy goals of the
TCA and the practical implications of the various construc-
tional options, we elect to follow the district court’s lead and
formally adopt the First Circuit’s rule that a significant gap in
service (and thus an effective prohibition of service) exists
whenever a provider is prevented from filling a significant
9
See discussion of MetroPCS’s supremacy and preemption arguments,
infra at Section III, Part E.
METROPCS, INC. v. SAN FRANCISCO 2739
gap in its own service coverage. With the correct legal stan-
dard thus clarified, we now turn to the merits of MetroPCS’s
prohibition claim.
In applying the First Circuit’s provider-focused notion of
“significant gap,” the district court denied both parties sum-
mary judgment, holding that significant questions of fact still
exist as to whether the Board’s decision actually perpetuates
a significant gap in MetroPCS’s coverage. This conclusion is
amply supported by the existing record and, therefore, we
affirm the district court’s ruling on this issue. Both parties
confidently assert that the current record unequivocally sup-
ports their respective positions. But to the contrary, the record
is replete with contradictory allegations as to MetroPCS’s
need for the Geary site. Compare Statements of Suki McCoy,
SER at 223-36 (stating that MetroPCS has adequate coverage
in the Richmond District); Statements of Martin Signithaler,
SER at 134-36 (stating that the Geary site would not improve
MetroPCS’s effective coverage); MetroPCS Marketing Mate-
rials, SER 225, 234 (advertising that MetroPCS has full cov-
erage around the Geary site), with Statements of MetroPCS
Technological Expert, SER at 200-02 (stating that MetroPCS
coverage is not adequate without the Geary site); Declaration
of Lisa Nahmanson, ER 32 (stating that MetroPCS coverage
is insufficient without the Geary site); Testimony of Deborah
Stein, SER 191-200(same); Declaration of John Schwartz, ER
49 (challenging basis of City’s contention that existing
MetroPCS service is adequate).
In urging us to grant it summary judgment on this issue, the
City cites a bevy of cases that, collectively, are meant to dem-
onstrate that “[t]he TCA does not assure every wireless carrier
a right to seamless coverage in every area it serves,” and that
the inability to cover a “a few blocks in a large city” is, as a
matter of law, not a “significant gap.” While we recognize
that the TCA does not guarantee wireless service providers
coverage free of small “dead spots,”10 the existing case law
10
The district court correctly notes that the relevant service gap must be
truly “significant” and “not merely individual ‘dead spots’ within a greater
2740 METROPCS, INC. v. SAN FRANCISCO
amply demonstrates that “significant gap” determinations are
extremely fact-specific inquiries that defy any bright-line
legal rule. Moreover, the City’s assertion as to the size of
MetroPCS’s alleged service gap merely assumes the very fact
in issue here — the existence and geographic proportions of
a gap in MetroPCS’s coverage.
[18] Given the conflicting contents of the record, there is
simply no basis for granting either party summary judgment
on this issue. We affirm the district court’s ruling to that
effect.
(b) Least Intrusive Means
[19] Under all existing versions of the “significant gap”
test, once a wireless service provider has demonstrated that
the requisite significant gap in coverage exists, it must then
make some showing as to the intrusiveness or necessity of its
proposed means of closing that gap. Here again, the circuits
are split as to the required showing.
The Second and Third Circuits require the provider to show
that “the manner in which it proposes to fill the significant
gap in service is the least intrusive on the values that the
denial sought to serve.” Penn Township, 196 F.3d at 480
(emphasis added); see also Omnipoint, 331 F.3d at 398; Unity
Township, 282 F.3d at 266; Willoth, 176 F.3d at 643. The
First and Seventh Circuits, by contrast, require a showing that
there are “no alternative sites which would solve the prob-
lem.” Second Generation Props., 313 F.3d at 635; see also St.
Croix County, 342 F.3d at 834-35 (adopting the First Circuit
service area.” 259 F. Supp. 2d at 1014. Courts applying both versions of
the “significant gap” test appear to agree on this proposition. See e.g., Sec-
ond Generation Props., 313 F.3d at 631; 360o Communications Co., 211
F.3d at 87; Willoth, 176 F.3d at 643-44.
METROPCS, INC. v. SAN FRANCISCO 2741
test and requiring providers to demonstrate that there are no
“viable alternatives”) (citing Second Generation Properties).11
After concluding that material issues of fact remain as to
the presence (or absence) of a significant gap in MetroPCS’s
coverage, the district court attempted to reconcile competing
interpretations of the intrusiveness inquiry by creating its own
“fact-based test that requires the provider to demonstrate that
its proposed solution is the most acceptable option for the
community in question.” 259 F. Supp. 2d at 1015 (emphasis
added).
Since there is no controlling legal authority on the issue,
our choice of rule must ultimately come down to policy con-
siderations. The district court’s “most acceptable option”
rubric seems a hopelessly subjective standard, and one won-
ders how a proposed site could ever be proven “the most
acceptable” if a zoning proposal with respect to it had already
been denied by local authorities. On the other hand, the First
and Seventh Circuit requirement that a provider demonstrate
that its proposed facility is the only viable option seems too
exacting. As the case at bar demonstrates, there may be sev-
eral viable means of closing a major service gap, (see
MetroPCS Alternative Site Analysis, SER 26-35), and in such
a situation, this “only viable option” rule would either pre-
clude the construction of any facility (since no single site is
the “only viable” alternative) or require providers to endure
11
The district court also notes that, in the Fourth Circuit, “ ‘[a] commu-
nity could rationally reject the least intrusive proposal in favor of a more
intrusive proposal that provides better service or that better promotes com-
mercial goals of the community.’ ” 259 F. Supp. 2d at 1014 (quoting 360o
Communications Co., 211 F.3d at 87). This rule is inapposite to the case
at bar since the Fourth Circuit, as discussed above, does not recognize
either version of the “significant gap” test. Instead, it holds that the TCA
prohibits only general or “blanket” bans on wireless services. Under such
a rule, denials of individual siting requests can never run afoul of the
TCA, and so the relative intrusiveness of different siting proposals is irrel-
evant.
2742 METROPCS, INC. v. SAN FRANCISCO
repeated denials by local authorities until only one feasible
alternative remained. This seems a poor use of time and
resources for both providers and local governments alike.
[20] The Second and Third Circuit “least intrusive” stan-
dard, by contrast, allows for a meaningful comparison of
alternative sites before the siting application process is need-
lessly repeated. It also gives providers an incentive to choose
the least intrusive site in their first siting applications, and it
promises to ultimately identify the best solution for the com-
munity, not merely the last one remaining after a series of
application denials.
[21] For these reasons, we now adopt the “least intrusive
means” standard and instruct the district court to apply this
rule as necessary in its consideration of the prohibition issue
on remand.
E. Preemption Claim
One additional note is in order that bears, albeit indirectly,
on MetroPCS’s discrimination and prohibition claims.
MetroPCS vigorously asserts, as separate claims independent
of the specific provisions of the TCA, that the Board’s denial
of its CUP based on an appraisal of community “necessity”
violates the FCC’s exclusive licensing authority over wireless
providers and is preempted by the TCA’s statutory scheme.
In support of this claim MetroPCS points out that the FCC
has identified “an immediate need for cellular service” and
has established the goal of “providing for up to two cellular
systems per market.” In the Matter of An Inquiry Into the Use
of Bands 825-845 MHz and 870-890 MHz for Cellular Com-
munications Systems, Memorandum Opinion and Order on
Reconsideration, 89 F.C.C.2d 58, at ¶ 82 (1982). The FCC
further sought to preclude state regulation of the number of
service providers in a given market: “[W]e have already
determined ‘need’ on a nationwide basis and have preempted
METROPCS, INC. v. SAN FRANCISCO 2743
the states from denying state certification based on the num-
ber of existing carriers in the market or the capacity of exist-
ing carriers to handle the demand for mobile services.” Id.
Congress similarly has declared that “no State or local gov-
ernment shall have any authority to regulate the entry of or
the rates charged by any commercial mobile service,” 47
U.S.C. § 332(c)(3)(A), and that the TCA is “not intended to
limit or affect the Commission’s general authority over radio
telecommunications, including the authority to regulate the
construction, modification and operation of radio facilities,”
H.R. Conf. Rep. No. 104-458, at 209 (1996). For its part, the
City does little to address these arguments directly.
Yet while MetroPCS does convincingly demonstrate that
the FCC has exclusive authority to issue licenses and regulate
the wireless services market — a point which appears to be
undisputed between the parties — the TCA itself fully accom-
modates these preemption concerns in its anti-discrimination
and anti-prohibition provisions. The TCA’s statutory scheme
ensures that the bandwidth usage and competitive market
dynamics sought by Congress and the FCC will be realized,
while at the same time allowing cities to prevent certain areas
from being overburdened by a proliferation of wireless facili-
ties. MetroPCS’s vigorous per se arguments against necessity-
based zoning decisions misconstrue the delicate regulatory
balance struck by the Act.
First of all, a zoning decision to prohibit construction of a
wireless facility at a specific location — whether based on
necessity or not — does not implicate the FCC’s ability to
regulate the number of wireless providers in a given market.
Federal supremacy and the FCC’s exclusive power to regulate
wireless markets are fully vindicated in the TCA’s anti-
discrimination and anti-prohibition provisions, especially
under the First Circuit’s “multiple provider” interpretation of
the “prohibition” clause. As discussed above, whatever a
locality’s judgment as to the need for a facility at a given site,
such a determination may not effectively prohibit service or
2744 METROPCS, INC. v. SAN FRANCISCO
reflect favoritism for one provider over another. This protects,
at a macro-level, the competitive markets that the FCC has
sought to construct. Put differently, if a single siting denial
does not create significant gaps in provider coverage and
reflects no unreasonable discrimination among providers,
market dynamics and FCC authority are not threatened in the
first place.
Essentially, the TCA represents a congressional judgment
that local zoning decisions harmless to the FCC’s greater reg-
ulatory scheme — and only those proven to be harmless —
should be allowed to stand. As discussed earlier, the TCA
“does not affect or encroach upon the substantive standards to
be applied under established principles of state and local law,”
Oyster Bay, 166 F.3d at 494 (internal quotation marks omit-
ted) (emphasis added), and it “does not create a substantive
federal limitation upon local land use regulatory power,”
Todd, 244 F.3d at 58; see also St. Croix County, 342 F.3d at
830 (same rule) (quoting Todd). MetroPCS’s preemption and
supremacy claims are thus misdirected. See, e.g., El Cajon, 83
F. Supp. 2d at 1168-69 (rejecting a federal preemption claim
in a § 332(c)(7) case). The fate of MetroPCS’s real concerns
in this area — that localities may be able to reject all siting
proposals that they feel are unnecessary — is determined by
our construction of the TCA’s prohibition provision. As dis-
cussed earlier, the First Circuit’s multiple-provider approach
best preserves market competition and addresses these
supremacy and preemption concerns as well.
F. Environmental Concerns
[22] The last claim in this case is easily resolved. The TCA
provides that localities may not base zoning decisions on con-
cerns over radio frequency emissions if the proposed wireless
facility complies with FCC emissions requirements:
No State or local government or instrumentality
thereof may regulate the placement, construction,
METROPCS, INC. v. SAN FRANCISCO 2745
and modification of personal wireless service facili-
ties on the basis of the environmental effects of radio
frequency emissions to the extent that such facilities
comply with the [FCC]’s regulations concerning
such emissions.
47 U.S.C. § 332(c)(7)(B)(iv). There is no dispute that Metro-
PCS’s proposed facility for the Geary site complies with the
relevant FCC regulations. The only issue is whether the City’s
decision was impermissibly based on concerns over RF emis-
sions.
MetroPCS argues that the Board did base its decision on
environmental considerations. In support of this claim it notes
that “opponents of MetroPCS’s application made boisterous
presentations before the Board regarding RF emissions,
accompanied by argument, badges and t-shirts complaining
about RF emissions.” MetroPCS also claims that “the Board’s
denial motion expressly states that it was based on ‘all of the
public comments made in support of and opposed to the
appeal.’ ” Finally, MetroPCS notes that the Board’s decision
stated the proposed facility would “not promote the health,
safety and welfare of the city.”
These observations are of little relevance to the issue here.
As the district court correctly points out, the party actually
challenging the MetroPCS CUP application before the Board
(Mr. Blum) took pains to clarify that his appeal was not based
on environmental concerns. Additionally, the Board’s formal
decision against MetroPCS did not state that it was “based
on” all public comments made in support of and opposed to
the appeal. MetroPCS’s quotation on this point is misleading.
The Board merely stated that it “reviewed and considered” all
such comments, which is exactly what a local zoning board
is supposed to do at a public hearing. (Emphasis added.)
[23] Most crucially, the Board’s written decision does not
once mention RF emissions as a motivation for denying
2746 METROPCS, INC. v. SAN FRANCISCO
MetroPCS’s CUP application. Broadly stating (presumably as
a recitation of the City’s Policy Principles) that the proposed
facility “will not promote” public health, safety and welfare
is not remotely equivalent to basing a zoning decision on a
fear of RF emissions. Given the foregoing, the one case cited
by MetroPCS on this issue (Telespectrum, Inc. v. Pub. Serv.
Comm’n, 227 F.3d 414 (6th Cir. 2000)), which involved a
straightforward application of the TCA’s RF provision, is
inapposite. The district court was correct in granting the City
summary judgment as to this claim, and we affirm that ruling.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
ruling that the Board’s decision was properly “in writing,”
supported by substantial evidence and not impermissibly
based on concerns over radio frequency emissions under the
TCA. We also AFFIRM the district court’s ruling that mate-
rial questions of fact remain as to whether the Board’s deci-
sion effectively prohibited the provision of personal wireless
services under the TCA. Finally, we REVERSE the district
court’s determination that the Board’s decision did not, as a
matter of law, unreasonably discriminate among providers of
functionally equivalent services within the meaning of the
TCA, and we REMAND this case for further proceedings
consistent with this opinion.
GRABER, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority that genuine issues of material
fact remain with respect to whether the Board of Supervisors’
(Board) denial of MetroPCS’s application for a Conditional
Use Permit (CUP) to construct wireless facilities violated the
anti-discrimination and anti-prohibition provisions of the
Telecommunications Act of 1996 (TCA), 47 U.S.C. §§ 151-
METROPCS, INC. v. SAN FRANCISCO 2747
615. I write separately because the Board’s determination that
the proposed facilities are unnecessary, premised on the fact
that at least one other service provider serves the same area,
is irreconcilable with the anti-discrimination provision of the
TCA, 47 U.S.C. § 332(c)(7)(B)(i)(II). In view of that incon-
sistency, the Board’s “necessity” finding cannot support its
denial of MetroPCS’s request even if substantial evidence
supports that finding. I respectfully dissent from the majori-
ty’s conclusion to the contrary.
According to the majority, a reviewing court’s analysis of
the reasons given by a zoning authority for denying a request
to construct wireless facilities begins and ends with determin-
ing whether those reasons are authorized by local regulations
and supported by evidence. Relying on the Second Circuit’s
decision in Cellular Telephone Co. v. Town of Oyster Bay, the
majority concludes that “the TCA ‘does not affect or encroach
upon the substantive standards to be applied under established
principles of state and local law.’ ” Maj. op. at 2722 (empha-
sis in majority opinion) (quoting Cellular Tel. Co. v. Town of
Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999)). That is, the
reasons stated by a zoning authority in denying a request for
wireless facilities are irrelevant under the majority’s analysis.
Accordingly, the majority concludes that the Board was enti-
tled to reject MetroPCS’s application for a CUP solely
because “[n]othing in the record suggests that the area proxi-
mate to 5200 Geary Boulevard is not already served by at
least one other wireless service provider.” See Maj. op. at
2732-33 n.6 (finding no error in the Board’s “necessity” ratio-
nale because “the TCA is agnostic as to the substantive con-
tent of local regulations”).
The majority overstates the extent of the TCA’s indiffer-
ence to the substantive content of local regulations when
those regulations are applied to zoning decisions regarding the
“placement, construction, and modification of personal wire-
less service facilities.” 47 U.S.C. § 332(c)(7)(B)(i). Oyster
Bay tempered its statement regarding the TCA’s neutrality by
2748 METROPCS, INC. v. SAN FRANCISCO
observing that at least one provision of the TCA places a sub-
stantive limitation on the permissible bases to support a zon-
ing authority’s denial of a request for the construction of
wireless facilities: “We note . . . that [47 U.S.C.]
§ 332(c)(7)(B)(iv)[1] bars denials based on environmental
effects of rfes [radio frequency emissions,] if the applicant
facility would comply with FCC standards . . . .” Oyster Bay,
166 F.3d at 494 n.2. Although health and safety are undeni-
ably a proper subject for local regulation, the TCA “ ‘prevents
the denial of a permit on the sole basis that the facility would
cause negative environmental effects.’ ” Id. at 495 (quoting
Iowa Wireless Servs., L.P. v. City of Moline, 29 F. Supp. 2d
915, 923 (C.D. Ill. 1998).
Similarly, “the anti-discrimination and anti-prohibition pro-
visions of the TCA, [47 U.S.C. § 332(c)(7)(B)(i)(I), (II),]
involve federal limitations on state authority.” S.W. Bell
Mobile Sys., Inc. v. Todd, 244 F.3d 51, 58 (1st Cir. 2001)
(internal quotation marks omitted). Unlike the TCA’s provi-
sion relating to radio frequency emissions, the anti-
discrimination and anti-prohibition provisions do not
expressly prohibit the consideration of specific grounds in
zoning decisions regarding the construction of wireless facili-
ties. Nonetheless, those provisions do limit the ways in which
a state or local government may apply its zoning regulations
to a request for the placement of wireless facilities. As Todd
observed, a local zoning authority is “subject to several sub-
stantive and procedural limitations that ‘subject [local govern-
ments] to an outer limit’ upon their ability to regulate personal
wireless services land use issues.” Id. at 57 (alteration in orig-
1
47 U.S.C. § 332(c)(7)(B)(iv) provides:
No State or local government or instrumentality thereof may
regulate the placement, construction, and modification of per-
sonal wireless service facilities on the basis of the environmental
effects of radio frequency emissions to the extent that such facili-
ties comply with the Commission’s regulations concerning such
emissions.
METROPCS, INC. v. SAN FRANCISCO 2749
inal) (quoting Town of Amherst v. Omnipoint Communica-
tions Enters., Inc., 173 F.3d 9, 15 (1st Cir. 1999)); see also
APT Pittsburgh Ltd. P’ship v. Penn Township Butler County
of Pennsylvania, 196 F.3d 469, 473 (3d Cir. 1999) (noting
that the TCA “places several substantive and procedural limits
upon [local zoning] authority when it is exercised in relation
to personal wireless service facilities”).
For example, the Board could not deny MetroPCS’s appli-
cation solely on the ground that the availability of wireless
services in the Geary neighborhood may lead to increased
wireless telephone usage among automobile drivers in that
neighborhood, with a commensurate increase in traffic acci-
dents. Traffic safety is certainly a legitimate zoning concern,
and the Board could easily produce substantial evidence to
support a correlation between wireless telephone usage
among drivers and traffic accidents. Nonetheless, the Board’s
rationale for its decision would be entirely inconsistent with
the TCA’s anti-prohibition provision, as carefully and cor-
rectly interpreted by the majority, because the Board would be
seeking to preserve a significant coverage gap. Accordingly,
a denial of permission to construct wireless facilities for that
reason alone should not survive judicial scrutiny.
The Board’s necessity rationale presents the same problem.
Whatever its consistency with local zoning ordinances,2 the
denial of MetroPCS’s request on the ground that the Geary
neighborhood is already served by at least one other wireless
service provider is irreconcilable with § 332(c)(7)(B)(i)(II)’s
prohibition of zoning decisions that “unreasonably discrimi-
nate among providers of functionally equivalent services.” As
explained in the House Conference Report, the chief purpose
of the TCA is to “open[ ] all telecommunications markets to
competition.” H.R. Conf. Rep. No. 104-458, at 1 (1996). The
2
Pursuant to San Francisco Planning Code § 303(c)(1), the Board may
consider whether a proposed development “is necessary or desirable for,
and compatible with, the neighborhood or community.”
2750 METROPCS, INC. v. SAN FRANCISCO
TCA’s anti-discrimination provision furthers that purpose by
ensuring “that a State or local government does not in making
a decision regarding the placement, construction and modifi-
cation of facilities of personal wireless services described in
this section unreasonably favor one competitor over another.”
Id. at 208 (emphasis added).
Here, the Board’s necessity determination results in pre-
cisely the type of unreasonable discrimination that the TCA
seeks to prevent. It protects existing service providers against
potential competitors and effectively bars all new market
entrants from the area in question. Because the Board’s neces-
sity determination is inherently and unreasonably discrimina-
tory, it cannot serve as a valid, legally relevant basis for
rejecting MetroPCS’s application for a CUP.
The majority misunderstands my point when it claims that
I argue “that any zoning regulation—or application of such a
regulation—based on considerations of community ‘neces-
sity’ by its terms discriminates against new providers.” Maj.
op. at 2723. Instead, I argue much more simply, and much
more narrowly, that a local agency’s fact-finding about “ne-
cessity” must respect the statutorily required definition of
what “necessity” is.
Neither the majority nor the district court looked further
than the Board’s “necessity” rationale in holding that substan-
tial evidence supported the Board’s decision as a whole.
Because “[a] significant number of community members that
opposed the installation indicated that they had adequate wire-
less services [from other providers] in their district,” the dis-
trict court concluded that it “need not reach the question of
whether there is substantial evidence supporting the Board’s
determination that MetroPCS’s installation would cause
visual blight, or that MetroPCS did not need the antennas for
its own service.” MetroPCS, Inc. v. City & County of San
Francisco, 259 F. Supp. 2d 1024, 1010-11 & n.6 (N.D. Cal
2003). For the reasons discussed above, I disagree with the
METROPCS, INC. v. SAN FRANCISCO 2751
majority that the Board’s decision can rest on that ground
alone, even if that ground is supported by substantial evi-
dence. Accordingly, on remand, I would instruct the district
court to consider whether substantial evidence supports the
legally relevant and permissible reasons that the Board gave
for denying MetroPCS’s request to construct wireless facili-
ties.
In all other respects, I concur in the majority’s opinion.