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Dec. 12 --A 1990 voter initiative in the City of Huntington Beach, Calif. that required both the city's council and its residents to vote on and approve all construction projects costing more than $100,000 on public beaches and in parks was not a “local land use regulation” preempted by section 332(c)(7) of the Communications Act, a panel of the U.S. Court of Appeals for the Ninth Circuit has ruled (Omnipoint Commc'ns Inc. v. City of Huntington Beach, 2013 BL 342805, 9th Cir., No. 10-56877, 12/11/13).
Overturning a lower court's decision, the three-judge panel concluded that the city's initiative, known as “Measure C,” was rather a “voter-enacted rule” outside the scope of section 332(c)(7)--the key provision in the Act designed to speed local approval of cell-tower construction.
The ruling, while primarily affecting T-Mobile USA Inc. and the company's plans to build a cell tower in a public park in Huntington Beach, could have far-reaching implications for the wireless industry. At least in states within the Ninth Circuit's jurisdiction--Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, and Washington state--the ruling could, for one, prompt a flurry of new voter initiatives similar to that of Measure C. For the Ninth Circuit made it clear in its opinion that such “voter-approval requirements” could and should survive a Telecommunications Act preemption test.
“Because Measure C merely restrains the City's actions as a property owner and does not affect the city's administrative procedures for approving or denying a request 'to place, construct, or modify personal wireless service facilities' [pursuant to sections 332(c)(7)(B)(ii) and (iii)], the minimum procedural requirements established by these sections are likewise inapplicable,” wrote Circuit Judge Sandra Ikuta.
“By its terms, the [Act] applies only to local zoning and land use decisions and does not address a municipality's property rights as a landowner,” she explained further.
For support, Ikuta cited a 2002 ruling by the U.S. Court of Appeals for the Second Circuit in Sprint Spectrum L.P. v. Mills, 283 F. 3d 404, 26 CR 158, in which the court upheld a local school district decision's to revoke a lease agreement with Sprint to build an antenna on the roof of a public high school after Sprint announced that it would exceed an agreed-upon radio emission limit.
In appealing the decision, Sprint had argued that the school district's action was preempted by section 332(c)(7)(B)(iv), which prohibits local officials from “regulat[ing] the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions.” But the Second Circuit disagreed, holding that “the language and structure of the [Act] implicitly recognizes that some governmental decisions are not regulatory,” and therefore are not preempted by the Act.
In the Huntington case, the City Council had determined that even though T-Mobile had obtained valid land use and building permits and Site License Agreements, the wireless carrier was still required to seek voters' and the council's approval under Measure C before beginning construction on its cell tower.
The company promptly sued, filing a motion in federal district court for a preliminary injunction to prevent the city from applying Measure C to its Huntington Beach project, the cost of which is estimated at considerably more than $100,000.
After being denied an injunction, T-Mobile then filed a motion for partial summary judgment, and the court ruled partly in its favor. Ultimately, the court held that the Communications Act requires the city to process T-Mobile's applications for building permits within a reasonable period of time, and to explain its reason for denying the applications, in writing and supported by “substantial evidence.” To the lower court, the city simply could not use Measure C as a reason to deny T-Mobile's applications or to put off making a decision.
But the Ninth Circuit emerged with a different take: “Here, the City's authority to give permission via [a] Site License Agreement was limited by Measure C. The Site License Agreement itself required T-Mobile's compliance with all 'ordinances and regulations of general application now in effect or subsequently enacted' (which would include Measure C) as a condition of the license. Thus, once it became clear that T-Mobile's proposed project triggered Measure C, T-Mobile lacked the necessary land owner permission until Measure C's requirements were discharged. In other words, Measure C had an effect on landowner approval, not on the City's adjudicative process.”
The ruling comes as the Federal Communications Commission is intensely focused on crafting rules and reforms to promote the development of new wireless technologies.
One such ruling by the FCC, recently upheld by the courts, requires local governments to act on applications for erecting cell towers within 90 and 150 days (depending on whether the application was for a new tower or an addition to an existing tower).
At the same time, the ruling also comes amid increasing community resistance to cell sites, as environmental and health activists are beginning to draw links between cellphone use and cancer, lower bone density, and even infertility in men.
Martin Fineman, an attorney at Davis Wright Tremaine LLP who argued the case for T-Mobile, declined to comment Dec. 12. CTIA-The Wireless Association also declined to comment on the ruling.
Representatives for T-Mobile could not be reached for comment.
Steve Berry, president and CEO of the Competitive Carriers Association, whose members include T-Mobile, offered a brief statement saying the decision is “very unfortunate.”
“It will have a negative impact on the industry and creates additional hurdles to expanding mobile broadband services,” Berry said in a statement e-mailed to Bloomberg BNA Dec. 12.
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