Sprint Telephony Pcs v. County of San Diego

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, a division 05-56435

of the State of California; GREG
COX, in his capacity as a D.C. No.
supervisor of the County of San CV-03-1398-BTM
Diego; DIANNE JACOB, in her OPINION
capacity as a supervisor of the
County of San Diego; PAM
SLATER, in her capacity as a
supervisor of the County of San
Diego; RON ROBERTS, in his
capacity as a supervisor of the
County of San Diego; BILL HORN,
in his capacity as a 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
12699
12700 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
Argued and Submitted
June 24, 2008—Pasadena, California
Filed September 11, 2008
Before: Alex Kozinski, Chief Judge, and
Andrew J. Kleinfeld, Michael Daly Hawkins,
A. Wallace Tashima, Sidney R. Thomas, Barry G. Silverman,
Susan P. Graber, Ronald M. Gould, Marsha S. Berzon,
Richard C. Tallman, and Jay S. Bybee, Circuit Judges.
Opinion by Judge Graber;
Concurrence by Judge Gould
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12703
COUNSEL
Daniel T. Pascucci and Nathan R. Hamler, Mintz Levin Cohn
Ferris Glovsky and Popeo PC, San Diego, California, for the
plaintiff-appellant/cross-appellee.
Thomas D. Bunton, Senior Deputy County Counsel, County
of San Diego, San Diego, California, for the defendants-
appellees-cross-appellants.
Andrew G. McBride and Joshua S. Turner, Wiley Rein LLP,
Washington, D.C.; William K. Sanders, Deputy City Attor-
ney, San Francisco, California; Joseph Van Eaton, Miller &
Van Eaton, P.L.L.C., Washington, D.C.; John J. Flynn III,
Nossaman, Guthner, Knox & Elliott, LLP, Irvine, California;
T. Scott Thompson, Davis Wright Tremaine, LLP, Washing-
ton, D.C.; and Elaine Duncan and Jesus G. Roman, Verizon
California, Inc., Thousand Oaks, California, for amici curiae.
OPINION
GRABER, Circuit Judge:
The Telecommunications Act of 1996, Pub. L. No. 104-
104, 110 Stat. 56 (codified as amended in U.S.C. Titles 15, 18
& 47) (“the Act”), precludes state and local governments from
enacting ordinances that prohibit or have the effect of prohib-
iting the provision of telecommunications services, including
wireless services. In 2003, Defendant County of San Diego
enacted its Wireless Telecommunications Facilities ordinance.
San Diego County Ordinance No. 9549, § 1 (codified as San
Diego County Zoning Ord. §§ 6980-6991, 7352 (“the Ordi-
12704 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
nance”)). The Ordinance imposes restrictions and permit
requirements on the construction and location of wireless tele-
communications facilities. Plaintiff Sprint Telephony PCS
alleges that, on its face, the Ordinance prohibits or has the
effect of prohibiting the provision of wireless telecommunica-
tions services, in violation of the Act. The district court per-
manently enjoined the County from enforcing the Ordinance,
and a three-judge panel of this court affirmed. Sprint Tele-
phony PCS, L.P. v. County of San Diego, 490 F.3d 700 (9th
Cir. 2007). We granted rehearing en banc, 527 F.3d 791 (9th
Cir. 2008), and we now reverse.
FACTUAL AND PROCEDURAL HISTORY
The County of San Diego enacted the Ordinance “to estab-
lish comprehensive guidelines for the placement, design and
processing of wireless telecommunications facilities in all
zones within the County of San Diego.” San Diego County
Ordinance No. 9549, § 1. The Ordinance categorizes applica-
tions for wireless telecommunications facilities into four tiers,
depending primarily on the visibility and location of the pro-
posed facility. San Diego County Zoning Ordinance § 6985.
For example, an application for a low-visibility structure in an
industrial zone generally must meet lesser requirements than
an application for a large tower in a residential zone. Id.
Regardless of tier, the Ordinance imposes substantive and
procedural requirements on applications for wireless facilities.
For example, non-camouflaged poles are prohibited in resi-
dential and rural zones; certain height and setback restrictions
apply in residential zones; and no more than three facilities
are allowed on any site, unless “a finding is made that co-
location of more facilities is consistent with community char-
acter.” Id. An applicant is required to identify the proposed
facility’s geographic service area, to submit a “visual impact
analysis,” and to describe various technical attributes such as
height, maintenance requirements, and acoustical information,
although some exceptions apply. Id. § 6984. The proposed
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12705
facility must be located within specified “preferred zones” or
“preferred locations,” unless those locations are “not techno-
logically or legally feasible” or “a finding is made that the
proposed site is preferable due to aesthetic and community
character compatibility.” Id. § 6986. The proposed facility
also must meet many design requirements, primarily related
to aesthetics. Id. § 6987. The applicant also must perform reg-
ular maintenance of the facility, including graffiti removal
and proper landscaping. Id. § 6988.
General zoning requirements also apply. For example,
hearings are conducted before a permit is granted, id. § 7356,
and on appeal, if requested, id. § 7366(h). Before a permit is
granted, the zoning board must find:
That the location, size, design, and operating char-
acteristics of the proposed use will be compatible
with adjacent uses, residents, buildings, or structures,
with consideration given to:
1. Harmony in scale, bulk, coverage and density;
2. The availability of public facilities, services and
utilities;
3. The harmful effect, if any, upon desirable neigh-
borhood character;
4. The generation of traffic and the capacity and
physical character of surrounding streets;
5. The suitability of the site for the type and inten-
sity of use or development which is proposed;
and to
6. Any other relevant impact of the proposed use[.]
12706 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
Id. § 7358(a). The decision-maker retains discretionary
authority to deny a use permit application or to grant the
application conditionally. Id. § 7362.
Soon after the County enacted the Ordinance, Sprint
brought this action, alleging that the Ordinance violates 47
U.S.C. § 253(a)1 because, on its face, it prohibits or has the
effect of prohibiting Sprint’s ability to provide wireless tele-
communications services. Sprint sought injunctive and declar-
atory relief under the Supremacy Clause and 28 U.S.C.
§ 1331, and damages and attorney fees under 42 U.S.C.
§ 1983. The County argued that § 253(a) did not apply to the
Ordinance, because 47 U.S.C. § 332(c)(7) exclusively gov-
erns wireless regulations, and that, in any event, the Ordi-
nance is not an effective prohibition on the provision of
wireless services. The County also argued that damages and
attorney fees are unavailable because Congress did not create
a private right of action enforceable under 42 U.S.C. § 1983.
The district court first held that facial challenges to a local
government’s wireless regulations could be brought under
either § 253(a) or § 332(c)(7), because neither is exclusive.
The district court next held, relying on our decision in City of
Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001), that
the Ordinance violated § 253(a). The district court therefore
permanently enjoined the County from enforcing the Ordi-
nance against Sprint. Finally, the district court held that a
claim under 42 U.S.C. § 1983 for a violation of § 253(a) was
not cognizable and granted summary judgment to the County
on that claim. The parties cross-appealed. A three-judge panel
of this court affirmed, and we granted rehearing en banc.
1
In its complaint, Sprint also alleged that the Ordinance violated another
subsection of 47 U.S.C. § 253. The district court dismissed that cause of
action for failure to prosecute, and Sprint does not challenge that dismissal
on appeal.
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12707
STANDARDS OF REVIEW
We review for abuse of discretion the district court’s grant
of a permanent injunction, but review its underlying determi-
nations “by the standard that applies to that determination.”
Ting v. AT&T, 319 F.3d 1126, 1134-35 (9th Cir. 2003).
DISCUSSION
Sprint argues that, on its face, the Ordinance prohibits or
has the effect of prohibiting the provision of wireless telecom-
munications services, in violation of the Act. As a threshold
issue, the parties dispute which provision of the Act—47
U.S.C. § 253(a) or 47 U.S.C. § 332(c)(7)(B)(i)(II)—applies to
this case.
A. The Effective Prohibition Clauses of 47 U.S.C. § 253(a)
and 47 U.S.C. § 332(c)(7)(B)(i)(II)
When Congress passed the Act, it expressed its intent “to
promote competition and reduce regulation in order to secure
lower prices and higher quality services for American tele-
communications consumers and encourage the rapid deploy-
ment of new telecommunications technologies.” 110 Stat. at
56; see also Ting, 319 F.3d at 1143 (“[T]he purpose of the . . .
Act is to ‘provide for a pro-competitive, deregulatory national
policy framework . . . by opening all telecommunications
markets to competition.’ ” (quoting H.R. Rep. No. 104-458, at
113 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 124,
124)). The Act “represents a dramatic shift in the nature of
telecommunications regulation.” Cablevision of Boston, Inc.
v. Pub. Improvement Comm’n, 184 F.3d 88, 97 (1st Cir.
1999); see also Ting, 319 F.3d at 1143 (characterizing the Act
as a “dramatic break with the past”). Congress chose to
“end[ ] 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., con-
curring in part, dissenting in part).
12708 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
[1] Congress did so by enacting 47 U.S.C. § 253, a new
statutory section that preempts state and local regulations that
maintain the monopoly status of a telecommunications service
provider. See Cablevision of Boston, 184 F.3d at 98(“Congress apparently feared that some states and municipali-
ties might prefer to maintain the monopoly status of certain
providers . . . . Section 253(a) takes that choice away from
them. . . .”). Section 253(a) states: “No State or local statute
or regulation, or other State or local legal requirement, may
prohibit or have the effect of prohibiting the ability of any
entity to provide any interstate or intrastate telecommunica-
tions service.”
The Act also contained new provisions applicable only to
wireless telecommunications service providers. The House
originally proposed legislation requiring the Federal Commu-
nications Commission (“FCC”) to regulate directly the place-
ment of wireless telecommunications facilities. See H.R. Rep.
No. 104-204(I), § 107, at 94 (1995), reprinted in 1996
U.S.C.C.A.N. 10, 61. But the House and Senate conferees
decided instead to “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. Rep. No. 104-458, § 704, at 207-08 (1996) (Conf. Rep.),
reprinted in 1996 U.S.C.C.A.N. 124, 222.
[2] Accordingly, at the same time, Congress also enacted
47 U.S.C. § 332(c)(7). Section 332(c)(7)(A) preserves the
authority of local governments over zoning decisions regard-
ing the placement and construction of wireless service facili-
ties, subject to enumerated limitations in § 332(c)(7)(B). One
such limitation is that local regulations “shall not prohibit or
have the effect of prohibiting the provision of personal wire-
less services.” Id. § 332(c)(7)(B)(i)(II).
We have interpreted § 332(c)(7)(B)(i)(II) in accordance
with its text. In MetroPCS, Inc. v. City of San Francisco, 400
F.3d 715, 730-31 (9th Cir. 2005), we held that a locality runs
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12709
afoul of that provision if (1) it imposes a “city-wide general
ban on wireless services” or (2) it actually imposes restric-
tions that amount to an effective prohibition.
[3] Our interpretation of § 253(a), however, has not hewn
as closely to its nearly identical text. Again, § 253(a) states:
“No State or local statute or regulation, or other State or local
legal requirement, may prohibit or have the effect of prohibit-
ing the ability of any entity to provide any interstate or intra-
state telecommunications service.” In Auburn, we became one
of the first federal circuit courts to interpret that provision.
We surveyed district court decisions and adopted their broad
interpretation of its preemptive effect. Auburn, 260 F.3d at
1175-76. In the course of doing so, we quoted § 253(a) some-
what inaccurately, inserting an ellipsis in the text of § 253(a).
Id. at 1175. We held that “[s]ection 253(a) preempts ‘regula-
tions that not only “prohibit” outright the ability of any entity
to provide telecommunications services, but also those that
“may . . . have the effect of prohibiting” the provision of such
services.’ ” Id. (quoting Bell Atl.-Md., Inc. v. Prince George’s
County, 49 F. Supp. 2d 805, 814 (D. Md. 1999), vacated and
remanded on other grounds, 212 F.3d 863 (4th Cir. 2000));
see also Qwest Commc’ns Inc. v. City of Berkeley, 433 F.3d
1253, 1258 (9th Cir. 2006) (invalidating the locality’s regula-
tions because they “may have the effect of prohibiting tele-
communications companies from providing services”); Qwest
Corp. v. City of Portland, 385 F.3d 1236, 1241 (9th Cir.
2004) (emphasizing that “regulations that may have the effect
of prohibiting the provision of telecommunications services
are preempted [by § 253(a)]”). It followed from that truncated
version of the statute that, if a local regulation merely “cre-
ate[s] a substantial . . . barrier” to the provision of services or
“allows a city to bar” provision of services, Auburn, 260 F.3d
at 1176, then § 253(a) preempts the regulation. Applying that
broad standard, we held that the municipal regulations at issue
in Auburn were preempted because they imposed procedural
requirements, charged fees, authorized civil and criminal pen-
alties, and—“the ultimate cudgel”—reserved discretion to the
12710 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
city to grant, deny, or revoke the telecommunications fran-
chises. Id.
Our expansive reading of the preemptive effect of § 253(a)
has had far-reaching consequences. The Auburn standard has
led us to invalidate several local regulations. See Berkeley,
433 F.3d at 1258 (holding that Berkeley’s regulations were
preempted by § 253(a)); Portland, 385 F.3d at 1239-42(reversing the district court’s holding that Portland’s regula-
tions survived preemption and remanding for additional anal-
ysis). Three of our sister circuits also have followed our broad
interpretation of § 253(a), albeit with little discussion. See
P.R. Tel. Co. v. Municipality of Guayanilla, 450 F.3d 9, 18
(1st Cir. 2006) (citing Qwest Corp. v. City of Santa Fe, 380
F.3d 1258, 1269 (10th Cir. 2004)); Santa Fe, 380 F.3d at 1270(quoting Auburn, 260 F.3d at 1176); TCG N.Y., Inc. v. City of
White Plains, 305 F.3d 67, 76 (2d Cir. 2002). Applying our
Auburn standard, federal district courts have invalidated local
regulations in tens of cases across this nation’s towns and cit-
ies. See, e.g., NextG Networks of Cal., Inc. v. County of Los
Angeles, 522 F. Supp. 2d 1240, 1253 (C.D. Cal. 2007); TC
Sys., Inc. v. Town of Colonie, 263 F. Supp. 2d 471, 481-84
(N.D.N.Y. 2003); XO Mo., Inc. v. City of Maryland Heights,
256 F. Supp. 2d 987, 996-98 (E.D. Mo. 2003).
But the tension between the Auburn standard and the full
text of § 253(a) has not gone unnoticed. See City of Portland
v. Elec. Lightwave, Inc., 452 F. Supp. 2d 1049, 1059 (D. Or.
2005) (“The Ninth Circuit’s interpretation of the scope of sec-
tion 253(a) appears to depart from the plain meaning of the
statute . . . .”); Qwest Corp. v. City of Portland, 200 F. Supp.
2d 1250, 1255 (D. Or. 2002) (construing the Auburn standard
as dictum because reading § 253(a) as preempting regulations
that may have the effect of prohibiting telecommunications
services “simply misreads the plain wording of the statute”),
rev’d by Portland, 385 F.3d at 1241 (“Like it or not, both we
and the district court are bound by our prior ruling [in
Auburn].”); see also Newpath Networks LLC v. City of Irvine,
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12711
No. SACV-06-550, 2008 WL 2199689, at *4 (C.D. Cal. Mar.
10, 2008) (noting that “the Court is sympathetic to Irvine’s
argument that judicial decisions in this area have not been
particularly instructive in telling municipalities how they may
regulate in accordance with the . . . Act”). Recently, the
Eighth Circuit rejected the Auburn standard and held that, to
demonstrate preemption, a plaintiff “must show actual or
effective prohibition, rather than the mere possibility of prohi-
bition.” Level 3 Commc’ns, L.L.C. v. City of St. Louis, 477
F.3d 528, 532-33 (8th Cir. 2007); see also AT&T Commc’ns
of Pac. Nw., Inc. v. City of Eugene, 35 P.3d 1029, 1047-48
(Or. Ct. App. 2001) (implicitly rejecting the Auburn stan-
dard).
[4] We find persuasive the Eighth Circuit’s and district
courts’ critique of Auburn. Section 253(a) provides that “[n]o
State or local statute or regulation . . . may prohibit or have
the effect of prohibiting. . . provi[sion of] . . . telecommunica-
tions service.” In context, it is clear that Congress’ use of the
word “may” works in tandem with the negative modifier
“[n]o” to convey the meaning that “state and local regulations
shall not prohibit or have the effect of prohibiting telecommu-
nications service.” Our previous interpretation of the word
“may” as meaning “might possibly” is incorrect. We therefore
overrule Auburn and join the Eighth Circuit in holding that “a
plaintiff suing a municipality under section 253(a) must show
actual or effective prohibition, rather than the mere possibility
of prohibition.” Level 3 Commc’ns, 477 F.3d at 532.
Although our conclusion rests on the unambiguous text of
§ 253(a), we note that our interpretation is consistent with the
FCC’s. See In re Cal. Payphone Ass’n, 12 F.C.C.R. 14191,
14209 (1997) (holding that, to be preempted by § 253(a), a
regulation “would have to actually prohibit or effectively pro-
hibit” the provision of services); Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)
(holding that the two-step Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984), analysis applies to
12712 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
FCC rulings). Were the statute ambiguous, we would defer to
the FCC under Chevron, as its interpretation is certainly rea-
sonable. 467 U.S. at 843. Our narrow interpretation of the pre-
emptive effect of § 253(a) also is consistent with the
presumption that “express preemption statutory provisions
should be given a narrow interpretation.” Air Conditioning &
Refrigeration Inst. v. Energy Res. Conservation & Dev.
Comm’n, 410 F.3d 492, 496 (9th Cir. 2005).
Our present interpretation of § 253(a) is buttressed by our
interpretation of the same relevant text in § 332(c)(7)(B)(i)(II)
—“prohibit or have the effect of prohibiting.” In MetroPCS,
to construe § 332(c)(7)(B)(i)(II), we focused on the actual
effects of the city’s ordinance, not on what effects the ordi-
nance might possibly allow. 400 F.3d at 732-34. Indeed, we
rejected the plaintiff’s argument that, because the city’s zon-
ing ordinance granted discretion to the city to reject an appli-
cation based on vague standards such as “necessity,” the
ordinance necessarily constituted an effective prohibition. Id.
at 724, 732. Consequently, our interpretation of the “effective
prohibition” clause of § 332(c)(7)(B)(i)(II) differed markedly
from Auburn’s interpretation of the same relevant text in
§ 253(a). Compare MetroPCS, 400 F.3d at 731-35 (analyzing,
under § 332(c)(7)(B)(i)(II), whether the city’s ordinance and
decision actually have the effect of prohibiting the provision
of wireless services), with Portland, 385 F.3d at 1241(“[R]egulations that may have the effect of prohibiting the
provision of telecommunications services are preempted [by
§ 253(a)].”); compare also MetroPCS, 400 F.3d at 732(rejecting the argument that “the City’s zoning ‘criteria,’
which allow for [permit] 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”), with
Auburn, 260 F.3d at 1176 (holding that the city’s ordinance
is an effective prohibition under § 253(a), in large part
because the “city reserves discretion to grant, deny, or revoke
the [telecommunications] franchises”).
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12713
When Congress uses the same text in the same statute, we
presume that it intended the same meaning. See N. Sports, Inc.
v. Knupfer (In re Wind N’ Wave), 509 F.3d 938, 945 (9th Cir.
2007) (applying the presumption); Boise Cascade Corp. v.
EPA, 942 F.2d 1427, 1432 (9th Cir. 1991) (“We must pre-
sume that words used more than once in the same statute have
the same meaning.”); see also Smith v. City of Jackson, 544
U.S. 228, 233 (2005) (plurality opinion) (“[W]e begin with
the premise that when Congress uses the same language in
two statutes having similar purposes, particularly when one is
enacted shortly after the other, it is appropriate to presume
that Congress intended that text to have the same meaning in
both statutes.”); id. at 261 (O’Connor, J., concurring in the
judgment) (stating that the presumption should apply in the
absence of “strong evidence” to the contrary). We see nothing
suggesting that Congress intended a different meaning of the
text “prohibit or have the effect of prohibiting” in the two
statutory provisions, enacted at the same time, in the same
statute.
[5] Our holding today therefore harmonizes our interpreta-
tions of the identical relevant text in §§ 253(a) and
332(c)(7)(B)(i)(II).2 Under both, a plaintiff must establish
either an outright prohibition or an effective prohibition on
the provision of telecommunications services; a plaintiff’s
showing that a locality could potentially prohibit the provision
of telecommunications services is insufficient.
Because Sprint’s suit hinges on the statutory text that we
interpreted above—“prohibit or have the effect of
prohibiting”—we need not decide whether Sprint’s suit falls
under § 253 or § 332. As we now hold, the legal standard is
the same under either.
2
We make no comment on what differences, if any, exist between the
two statutory sections in other contexts.
12714 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
B. The Effective Prohibition Standard Applied to the County
of San Diego’s Ordinance
[6] Having established the proper legal standard, we turn to
Sprint’s facial challenge to the Ordinance. “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.” United States v. Salerno, 481 U.S. 739, 745 (1987).3
The Ordinance plainly is not an outright ban on wireless
facilities. We thus consider whether the Ordinance effectively
prohibits the provision of wireless facilities. We have no diffi-
culty concluding that it does not.
The Ordinance imposes a layer of requirements for wireless
facilities in addition to the zoning requirements for other
structures. On the face of the Ordinance, none of the require-
ments, individually or in combination, prohibits the construc-
tion of sufficient facilities to provide wireless services to the
County of San Diego.
[7] Most of Sprint’s arguments focus on the discretion
reserved to the zoning board. For instance, Sprint complains
that the zoning board must consider a number of “malleable
and open-ended concepts” such as community character and
3
The Supreme Court and this court have called into question the contin-
uing validity of the Salerno rule in the context of First Amendment chal-
lenges. See, e.g., Wash. State Grange v. Wash. State Republican Party,
128 S. Ct. 1184, 1190 (2008); Hotel & Motel Ass’n of Oakland v. City of
Oakland, 344 F.3d 959, 971-72 (9th Cir. 2003). In cases involving federal
preemption of a local statute, however, the rule applies with full force. See
Hotel & Motel Ass’n, 344 F.3d at 971 (“To bring a successful facial chal-
lenge outside the context of the First Amendment, ‘the challenger must
establish that no set of circumstances exists under which the [statute]
would be valid.’ ” (alteration in original) (quoting Salerno, 481 U.S. at
745)); see also Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995) (unan-
imous opinion) (applying Salerno to a federal preemption facial challenge
to a state statute).
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12715
aesthetics; it may deny or modify applications for “any other
relevant impact of the proposed use”; and it may impose
almost any condition that it deems appropriate. A certain level
of discretion is involved in evaluating any application for a
zoning permit. It is certainly true that a zoning board could
exercise its discretion to effectively prohibit the provision of
wireless services, but it is equally true (and more likely) that
a zoning board would exercise its discretion only to balance
the competing goals of an ordinance—the provision of wire-
less services and other valid public goals such as safety and
aesthetics. In any event, Sprint cannot meet its high burden of
proving that “no set of circumstances exists under which the
[Ordinance] would be valid,” Salerno, 481 U.S. at 745, sim-
ply because the zoning board exercises some discretion.
[8] The same reasoning applies to Sprint’s complaint that
the Ordinance imposes detailed application requirements and
requires public hearings. Although a zoning board could con-
ceivably use these procedural requirements to stall applica-
tions and thus effectively prohibit the provision of wireless
services, the zoning board equally could use these tools to
evaluate fully and promptly the merits of an application.
Sprint has pointed to no requirement that, on its face, demon-
strates that Sprint is effectively prohibited from providing
wireless services. For example, the Ordinance does not
impose an excessively long waiting period that would amount
to an effective prohibition. Moreover, if a telecommunications
provider believes that the zoning board is in fact using its pro-
cedural rules to delay unreasonably an application, or its dis-
cretionary authority to deny an application unjustifiably, the
Act provides an expedited judicial review process in federal
or state court. See 47 U.S.C. § 332(c)(7)(B)(ii) & (v).
[9] We are equally unpersuaded by Sprint’s challenges to
the substantive requirements of the Ordinance. Sprint has not
identified a single requirement that effectively prohibits it
from providing wireless services. On the face of the Ordi-
nance, requiring a certain amount of camouflage, modest set-
12716 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
backs, and maintenance of the facility are reasonable and
responsible conditions for the construction of wireless facili-
ties, not an effective prohibition.
That is not to say, of course, that a plaintiff could never
succeed in a facial challenge. If an ordinance required, for
instance, that all facilities be underground and the plaintiff
introduced evidence that, to operate, wireless facilities must
be above ground, the ordinance would effectively prohibit it
from providing services. Or, if an ordinance mandated that no
wireless facilities be located within one mile of a road, a
plaintiff could show that, because of the number and location
of roads, the rule constituted an effective prohibition. We
have held previously that rules effecting a “significant gap” in
service coverage could amount to an effective prohibition,
MetroPCS, 400 F.3d at 731-35, and we have no reason to
question that holding today.
[10] In conclusion, the Ordinance does not effectively pro-
hibit Sprint from providing wireless services. Therefore, the
Act does not preempt the County’s wireless telecommunica-
tions ordinance.
C. Section 1983 claim
[11] We adopt the reasoning and conclusion of the three-
judge panel that 42 U.S.C. § 1983 claims cannot be brought
for violations of 47 U.S.C. § 253. Sprint Telephony, 490 F.3d
at 716-18; accord Santa Fe, 380 F.3d at 1266-67; see also
Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 812-15
(9th Cir. 2007) (holding that § 1983 claims cannot be brought
for violations of 47 U.S.C. § 332).
AFFIRMED with respect to the § 1983 claim; otherwise
REVERSED. Costs on appeal awarded to Defendants -
Appellees/Cross-Appellants.
SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12717
GOULD, Circuit Judge, concurring:
I concur in full in Judge Graber’s majority opinion, holding
that Section 253(a) preempts any state or local law that actu-
ally or effectively prohibits provision of telecommunication
services. I write separately to add my view that normally local
governments will have the ability to enforce reasonable zon-
ing ordinances that might affect where and how a cellular
tower is located, but that will not effectively prohibit cellular
telephone service. Zoning ordinances, in my view, will be
preempted only if they would substantially interfere with the
ability of the carrier to provide such services. Cases of a pre-
empted zoning ordinance will doubtless be few and far
between, and the record in this case shows that telecommuni-
cation services here were not effectively barred by the zoning
ordinance.