Court sides with locals on wireless siting

By Jeff Arnold
DEPUTY LEGISLATIVE DIRECTOR

The 9th U.S. Circuit Court of Appeals reversed itself earlier this month saying that counties and cities can regulate the placement and appearance of wireless poles and towers.  The court acted on an appeal from San Diego County, Calif. whose 2003 ordinance was at issue. Sprint, supported by Verizon, brought the suit against the county. NACo filed (with other parties) an amicus brief in the case on behalf of San Diego.

In an earlier ruling, a three- member panel of the court ruled that San Diego’s ordinance effectively prohibited the provision of wireless services, which is not allowed under Sec. 253(a) of the Communications Act.  The full court reviewed that decision and overturned it saying that a plaintiff, “must establish either an outright prohibition or an effective prohibition,” not merely showing that a locality “could potentially prohibit the provision of telecommunications services.”  The court said specifically that local governments can regulate wireless towers and poles as long as they don’t actually prohibit wireless service within their borders or create a “significant gap in service.” The vote was 11 to 0.

San Diego County’s 2003 ordinance was intended to keep unsightly structures out of neighborhoods. It required poles to be camouflaged in residential areas, set height limits, required companies to submit a “visual impact analysis,” and allowed a zoning board to deny an application if it was inconsistent with the character of the community, according to SFGate.com, the online version of the San Francisco Chronicle.

This ruling is considered a victory for many reasons. It supports San Diego, San Francisco and other communities that have sought to regulate the proliferation of wireless facilities.  It overturns several other precedents in the 9th Circuit that were problematic for localities, and reaffirms decisions in other circuits. 

While the ruling only applies to the nine states in the circuit, it is likely to be adopted as precedence for other courts.

It is unknown whether Sprint will ask the U.S. Supreme Court to review the decision.