Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SPRINT PCS ASSETS, L.L.C., a 
Delaware limited liability
company, wholly-owned by Sprint
Telephony PCS, LP, a Delaware
limited partnership,
Plaintiff-Appellee,
v. No. 05-56106
CITY OF PALOS VERDES ESTATES, a D.C. No.
California municipality; CITY CV-03-00825-AHS
COUNCIL OF THE CITY OF PALOS Central District
VERDES ESTATES, its governing of California,
body; JOSEPH SHERWOOD, in his Santa Ana
official capacity as Mayor Pro ORDER
Tem of the City of Palos Verdes  CLARIFYING
Estates; JOHN FLOOD, in his official REQUEST THAT
capacity as Councilmember of the THE SUPREME
City of Palos Verdes Estates; COURT OF
ROSEMARY HUMPHREY, in her CALIFORNIA
official capacity as DECIDE A
Councilmember of the City of QUESTION OF
Palos Verdes Estates; DWIGHT CALIFORNIA
ABBOTT, in his official capacity as LAW
Councilmember of the City of
Palos Verdes Estates; JAMES F.
GOODHART, in his official capacity
as Councilmember of the City of
Palos Verdes Estates,
Defendants-Appellants.

14989
14990 SPRINT PCS ASSETS v. PALOS VERDES ESTATES
Filed November 16, 2007
Before: Barry G. Silverman, Kim McLane Wardlaw, and
Jay S. Bybee, Circuit Judges.
ORDER
On May 8, 2007, we respectfully requested that the
Supreme Court of California decide the question of whether
California Public Utilities Code §§ 7901 and 7901.1 permit
public entities to regulate the placement of telephone equip-
ment in public rights of way on aesthetic grounds.
On August 15, 2007, pursuant to California Rule of Court
8.548(f)(5), the California Supreme Court requested that we
clarify our question in light of the significance, if any, of our
decision in Sprint Telephony PCS, L.P. v. County of San
Diego, et al., 490 F.3d 700 (9th Cir. 2007).
We incorporate by reference our order of May 8, 2007.
Having reviewed our decision in Sprint Telephony, we
respectfully suggest that it does not answer the question of
California law that we certified for decision.
In Sprint Telephony, we considered whether the County of
San Diego’s (“the County”) wireless telecommunication ordi-
nance (“WTO”) ran afoul of 47 U.S.C. § 253(a), which pre-
vents state or local regulations from effectively prohibiting
the ability of entities to provide telecommunications services.
The WTO created a four-tier system for granting wireless per-
mits, requiring an applicant to submit voluminous material
before the County would grant a conditional use permit.
Sprint PCS alleged that the WTO was so “onerous” as to
effectively prohibit the provision of telecommunication ser-
vices. Because neither party challenged the validity of the
WTO under California law, we only resolved questions of
SPRINT PCS ASSETS v. PALOS VERDES ESTATES 14991
federal law. We held in Sprint Telephony that the WTO was
“outside the scope of permissible land use regulations because
it has the effect of prohibiting wireless communication ser-
vices” and on that basis concluded that § 253(a) preempted
the WTO. Id. at 718.
This appeal presents two questions distinct from those
answered in Sprint Telephony. First, we must answer whether
California Public Utilities Code §§ 7901 and 7901.1 permit
public entities to regulate the placement of telephone equip-
ment in public rights of way on aesthetic grounds. Second, we
must consider whether the zoning ordinances in question are
permissible under federal law. However, we need reach this
second question only if the zoning ordinances are valid under
California state law. Only if the California Supreme Court
were to decide that California Public Utilities Code §§ 7901
and 7901.1 allow aesthetic zoning would we be required to
determine whether the aesthetic zoning in question is pre-
empted by § 253(a).
For these reasons, we again certify to the Supreme Court of
California the question of whether the California Public Utili-
ties Code §§ 7901 and 7901.1 permit public entities to regu-
late the placement of telephone equipment in public rights of
way on aesthetic grounds.
IT IS SO ORDERED.
__________________________________
KIM McLANE WARDLAW
Circuit Judge, U.S. Court of Appeals for
the Ninth Circuit
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The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.