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MetroPCS vs San Francisco Appeal, 9th Circuit

MetroPCS vs San Francisco Appeal, 9th Circuit

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Published by David Sanger

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Published by: David Sanger on Feb 24, 2012
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02/24/2012

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FOR PUBLICATION
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
 
M
ETRO
PCS, I
NC
., a DelawareCorporation,
Plaintiff-Appellant-Cross-Appellee,
Nos. 03-1675903-16760v.D.C. No.
T
HE
C
ITY AND
C
OUNTY OF
S
AN
CV-02-3442 PJHF
RANCISCO
and T
HE
B
OARD OF
S
UPERVISORS OF THE
C
ITY OF
S
AN
OPINIONF
RANCISCO
,
 Defendants-Appellees-Cross-Appellants.
Appeals from the United States District Courtfor the Northern District of CaliforniaPhyllis J. Hamilton, District Judge, PresidingArgued and SubmittedOctober 4, 2004—San Francisco, CaliforniaFiled March 7, 2005Before: Richard D. Cudahy,* Susan P. Graber andRaymond 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 theSeventh Circuit, sitting by designation.
2707
 
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., SanDiego, California, and Paul L. Weisbecker, Litigation Coun-sel, Cingular Wireless LLC, Atlanta, Georgia, for the amicicuriae.
2711M
ETRO
PCS, I
NC
. v. S
AN
F
RANCISCO
 
OPINION
CUDAHY, Circuit Judge:MetroPCS brought the instant action in the District Courtfor the Northern District of California, alleging that a decisionby the San Francisco Board of Supervisors denyingMetroPCS 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 unreasonablediscrimination among providers of functionally equivalentwireless services, (4) prohibited or had the effect of prohibit-ing the provision of wireless services and (5) was improperlybased on environmental concerns about radio frequency (RF)emissions.Both parties moved for summary judgment, and the districtcourt granted the City’s motion for summary judgment as toall claims except the prohibition claim, ruling that materialquestions of fact remained as to whether the Board’s decisionhad the effect of prohibiting the provision of personal wirelessservices. Both parties now appeal the ruling below, and weaffirm in part and reverse in part the district court’s decision.
I.
 BACKGROUND
This case marks yet another episode in the ongoing strugglebetween federal regulatory power and local administrativeprerogatives — the kind of political collision that our federalsystem seems to invite with inescapable regularity. And asmost often happens in such cases, the courts are summonedto re-strike the balance of power between the national and thelocal. 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)
2712M
ETRO
PCS, I
NC
. v. S
AN
F
RANCISCO

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