Appellate Court Gives Local Govs Final Say on Telco Permits

Decision Reverses 2001 Precedent

By Linda Haugsted -- Multichannel News, 9/12/2008 9:25:00 AM

The U.S. Court of Appeals for the Ninth Circuit has reversed itself, raising the level of control local governments have to approve or deny local telecommunications permits or franchises.

The decision reverses precedent set in 2001, when the Ninth Circuit ruled on a dispute between the city of Auburn, Wash. and Qwest Communications LLC over the location of cell towers.

The court interpreted Section 253 of the federal Communications Policy Act, a section that states local governments will be pre-empted if they pass local laws that prohibit or have the effect of prohibiting the entry of telecommunications providers. That decision set a standard which allowed telecommunications providers to challenge local policy if their zoning policies or other rules could or “may prohibit” their ability to operate.

That decision has been cited in multiple municipal and telecom legal challenges. But recently, the Eight Circuit ruled in a Section 253 case between St. Louis and Level 3 Communications, questioned the logic of the Ninth Circuit, arguing in that case that Level 3 should prove a local ordinance "actually" prevented the company from from operating.

So when a cell-siting case between Sprint Telephone PCS and the county of San Diego hit the Ninth's docket, this court reviewed its own, earlier decision, and decided it agreed with the jurists in the Eighth Circuit. It adopted the higher standard of proof in an en banc decision (a panel of all the Ninth Circuit judges) on Sept. 11. It found that the county's ordinance directing the siting of cell towers is lawful.

The appeals decision could stand as the new precedent, or Sprint could appeal the decision to the U.S. Supreme Court.