The federal Ninth Circuit Court of Appeal for the western United States has expressly overruled its own strict interpretation of Telecommunications Act limits on local regulation affecting telecommunications services, in a decision filed on September 11, 2008 Sprint Telephony PCS, L.P. v. County of San Diego. In particular, the court now allows enforcement of the San Diego County Wireless Telecommunications Facilities Ordinance, which requires permits and public hearings before poles, towers and other wireless facilities can be constructed. The Ordinance provides vague aesthetic and community standards for the issuance or denial of such permits, such as the “harmony” of the facilities, their effects on “desirable neighborhood character”, and “any other relevant impact of the proposed use”.
Earlier, a panel of the Ninth Circuit had permanently enjoined enforcement of the same Ordinance under Telecom Act Section 253(a), which states that “No State or local statute or regulation . . . may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” (47 U.S.C. Section 253(a)). The court had applied Section 253(a) to mean that a local regulation is preempted and invalid if it “could” or “might possibly” have the effect of blocking telecommunications services, under its earlier Ninth Circuit ruling of City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001). However, in its new decision, the Ninth Circuit decides that for Section 253(a), its own “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’.” (Sprint Telephony PCS, L.P. v. County of San Diego, Ninth Circuit No. 05-56076, September 11, 2008)
One effect of the Ninth Circuit’s new rule is that local regulation of telecommunications facilities – for example, vaults, junction boxes, “refrigerator” node boxes, etc. – may often be considered enforceable until it can be proven in a specific case to have prevented the deployment of service. The new ruling may also give service providers reason to be more flexible in accommodating and resolving specific local complaints about facilities installations, rather than insisting on the right to place facilities at will.