United States District Court, N.D. California
November 23, 2005.
BAY AREA CELLULAR TELEPHONE COMPANY, A CALIFORNIA PARTNERSHIP, D/B/A AT & T WIRELESS, Plaintiff,
THE CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, et al., Defendants.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER GRANTING SUMMARY SUMMARY JUDGMENT IN PART AND DENYING
SUMMARY JUDGMENT IN PART
The parties' cross-motions for summary judgment came on for
hearing on November 2, 2005 before this court. Plaintiff Bay Area
Cellular Telephone, d/b/a AT & T Wireless ("ATTW") appeared
through its counsel, Marc E. Miller, and defendants the City and
County of San Francisco et al. ("the City") appeared through
their counsel, William K. Sanders. Having read all the papers
submitted and carefully considered the relevant legal authority,
the court hereby GRANTS IN PART and DENIES IN PART plaintiff's
motion for summary judgment, and GRANTS IN PART and DENIES IN
PART defendants' motion for summary judgment, for the reasons
stated at the hearing, and as follows.
ATTW provides wireless telecommunication services in the Bay
Area. On April 23, 2002, ATTW applied to the City for a
conditional use permit ("CUP") to install a wireless facility
atop a commercial building located near the intersection of 10th
Ave. and Geary Boulevard in San Francisco. See Declaration of
Chung-Han Lee in Support of ATTW's Motion for Summary Judgment
("Lee Decl.") Ex. 1. ATTW claims it needs this installation to better serve its customers in the Richmond district.
The San Francisco Planning Commission held a hearing on ATTW's
application, and conditionally approved it on July 17, 2003. Lee
Decl. Ex. 5 at 066-72. A month later, on August 15, 2003, local
resident Betty Chiao filed an appeal of the Planning Commission's
decision with the San Francisco Board of Supervisors (the
"Board"). Lee Decl. Ex. 6 at 084-87. The stated grounds for the
appeal were that "the proposed facility is unnecessary,
undesirable, and incompatible with the existing character of the
neighborhood." Id. at 086.
On September 16, 2003, the Board held a public hearing on the
appeal of the Planning Commission's decision. Lee Decl. Ex. 7. At
the hearing, a number of community residents testified to varying
degrees that ATTW's proposed facility is undesirable, and
unnecessary. Id. Many community residents also submitted
evidence that wireless coverage in the area is adequate.
AR*fn1 040-45, 019-26, 047-51, 108-118. ATTW, for its part,
submitted the testimony of a Planning Commission representative,
as well as technical engineers, to address the issues of
necessity and adequate coverage. Lee Decl. Ex. 7 at 055-65.
After hearing the evidence before it, the Board unanimously
voted to deny ATTW the CUP. Lee Decl. Ex. 8. The Board then
adopted written findings and issued a written denial on September
30, 2003. Lee Decl. Exs. 9-10.
As a result of the Board's decision, ATTW claims the City
violated section 332(c)(7) of the Telecommunications Act of 1996
("TCA"). See 47 U.S.C. § 151 et seq. Specifically, ATTW asserts
the following four causes of action:*fn2 (1) that the Board
violated the substantial evidence requirement of the TCA; (2)
that the Board improperly based its decision on the environmental
effects of radio frequency emissions; (3) that the Board
unreasonably discriminated against ATTW; and (4) that the Board's
decision improperly prohibited the provision of personal wireless services.
Both parties now move for summary judgment on all four
A. Legal Standard
Summary judgment is appropriate when the evidence shows there
is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The court
will resolve all disputed issues of fact in favor of the
non-moving party. Id. at 255.
B. Substantial Evidence
Under the TCA, a local government's decision to deny a request
to construct a wireless facility must be based upon "substantial
evidence." 47 U.S.C. § 332(c)(7)(B)(iii). A city's decision is
considered supported by substantial evidence if the record
contains "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." MetroPCS, Inc. v.
City and County of San Francisco, 400 F.3d 715, 725 (9th Cir.
2005); Telespectrum v. Public Service Commission, 227 F.3d 414,
423 (6th Cir. 2000). This requires "more than a scintilla of
evidence but less than a preponderance." MetroPCS, F.3d at 725.
In conducting such a review, the court must examine the entire
record, including evidence unfavorable to the city. Id.
The parties' arguments regarding the substantial evidence
requirement are twofold: first, the partes raise arguments as to
the proper scope of applicable laws that the Board was required
to consider. Specifically, ATTW claims that the Board was
required to take the Wireless Telecommunications Services
Facilities Siting Guidelines ("WTS Guidelines"), adopted by the Planning Commission in 1996, into account. The
City maintains that only the Planning Code controls. Second, the
parties dispute whether the actual evidence considered by the
Board, including the public testimony by local residents, is
sufficient to satisfy the substantial evidence requirement.
1. Scope of Applicable Laws
When conducting a "substantial evidence" inquiry, "local and
state zoning laws govern the weight to be given the evidence."
MetroPCS, F.3d at 725. A city's interpretation of its own
zoning laws "is entitled to great weight and should be respected
by the court unless it is clearly erroneous or unauthorized."
Carson Harbor Village Ltd. v. City of Carson,
70 Cal. App. 4th 281, 290 (1999).
The WTS Guidelines were enacted by the Planning Commission with
the aim of providing "comprehensive policies and guidelines" for
use in evaluating applications for CUPs. See Lee Decl., Ex. 3
at 1183-84. On their face, the Guidelines do not purport to be
duly enacted laws. Rather, they are a statement of policies that
set forth the applicable standards under which the Planning
Commission is to apply the Planning Code. Id. As such, they do
not have the force of binding law.
Accordingly, there is no basis here for enlarging the scope of
the substantial evidence inquiry to include the WTS Guidelines in
addition to the Planning Code (which neither side disputes does
have the force of binding law).
2. Sufficiency of Evidence
ATTW urges the court to consider the weight of the evidence
considered by the Board. Specifically, it takes issue with the
anecdotal and personal testimony in evidence at the hearing
before the Board, and argues that in view of ATTW's technical
testimony, such anecdotal and personal testimony cannot qualify
The Ninth Circuit's MetroPCS decision considered this same
argument, and controls here. In MetroPCS, as here, the Board
had denied a CUP application on the basis of oral testimony and
numerous written petitions from local neighborhood residents,
reporting that adequate wireless coverage already existed. The Ninth Circuit
affirmed this court's holding that such evidence was substantial.
In so doing, the Ninth Circuit acknowledged that "the Board's
inquiry into this issue was not a model of thoroughness or
rigor," but taken in totality, the evidence constituted a showing
that at the very least, "a reasonable mind might accept" as
adequate. 400 F.3d at 726.
So here. It is undisputed that the record reflects testimony on
the part of many residents (at least 20) stating that the
wireless coverage was adequate, and that there was no need for
the proposed facility. See generally Lee Decl., Ex. 7. It is
also undisputed that the Board's findings state that they were
grounding their decision to overturn the Planning Commission's
ruling on the fact that the proposed facility was unnecessary,
pursuant to the Planning Code. Lee Decl., Ex. 10. Even though
ATTW also submitted "technical" evidence to the contrary, this
court finds that, under MetroPCS, "a reasonable mind" might
accept the testimony before the Board as adequate.
Accordingly, summary judgment as to ATTW's substantial evidence
claim is GRANTED in favor of the City, and DENIED as to ATTW.
C. RF Emissions
ATTW claims that the City based its denial on the purported
adverse environmental effects of radio frequency ("RF")
emissions, in violation of 47 U.S.C. § 332(c)(7)(B)(iv). Section
332(c)(7)(B)(iv) states: "No State or local government or
instrumentality thereof may regulate the placement, construction,
and modification of personal wireless service facilities on the
basis of the environmental effects of radio frequency emissions
to the extent that such facilities comply with the Commission's
regulations concerning such emissions." See also MetroPCS,
400 F.3d at 736; Iowa Wireless Services, L.P. v. City of
Moline, 29 F. Supp. 2d 915, 924 (C.D. Ill. 1998) (emissions may
not be the sole reason for the denial of a permit).
MetroPCS again controls. There, the Ninth Circuit found that
the Board did not improperly base its decision on environmental
concerns, despite the fact that many of the opponents of
MetroPCS' CUP application stated at the hearing that their
comments were based on health concerns. See 400 F.3d at 736. In so holding,
the Ninth Circuit found instructive the fact that the Board's
formal decision did not once mention RF emissions, and the Board
never stated that it was basing its decision on all public
The same result is mandated here. ATTW has pointed to the
existence of three comments at the hearing which were purportedly
motivated by concern over RF emissions. AR 047-48, 054. However,
even assuming this to be the case (only one comment actually
claims that the installation would cause negative health
effects), it is undisputed that these comments represent a small
minority of the total evidence considered by the Board, and that
the Board at any rate expressly stated that its decision was
not based on concerns over RF emissions. AR 129. As such, the
holding in MetroPCS controls.
ATTW urges the court to view the Board's findings as a mere
pretext, and to look past the findings to determine that the
Board was in actuality motivated by concerns over adverse health
effects. The court declines to do so. In the first place, ATTW
provides no authority for overlooking and contravening the
Board's express findings where, as here, the only undisputed
evidence ATTW can point to is a small sample of testimony that
only ambiguously lends support for its argument. In the second,
ATTW's argument flies directly in the face of MetroPCS, which,
as stated above, requires a finding that the City did not
improperly base its decision on adverse health effects under the
undisputed facts here. Accordingly, summary judgment as to ATTW's
claim that the City improperly based its decision on adverse
health effects is GRANTED in favor of the City, and DENIED as to
D. Unreasonable Discrimination
ATTW next asserts that the City unreasonably discriminated
against it in violation of 47 U.S.C. § 332(c)(7)(B)(I) of the
TCA. This provision states that "[t]he regulation of the
placement, construction, and modification of personal wireless
service facilities by any State or local government or
instrumentality thereof (I) shall not unreasonably discriminate
among providers of functionally equivalent services."
47 U.S.C. § 332(c)(7)(B)(I).
In determining whether a CUP should be granted to a
telecommunications services provider, the Ninth Circuit has held that "some discrimination
among providers of functionally equivalent services is allowed.
Any discrimination need only be reasonable." MetroPCS,
400 F.3d at 727; see also Sprint Spectrum v. Willoth, 176 F.3d 630, 638
(2d Cir. 1999). In demonstrating that discrimination is not
reasonable, "providers alleging unreasonable discrimination must
show that they have been treated differently from other providers
whose facilities are `similarly situated' in terms of the
`structure, placement or cumulative impact' as the facilities in
question." MetroPCS, 400 F.3d at 727.
Here, ATTW bases its unreasonable discrimination claim on the
fact that (1) the City previously granted Cingular*fn4 the
right to have its wireless facility on the very same Property in
question; and (2) the City also previously granted Metricom the
right to place 16 antennas on the same Property. Accordingly, the
issue before the court is whether the City's denial of ATTW's CUP
was reasonable in light of the permits previously granted to
Cingular and Metricom regarding the same Property.
The City does not dispute that it previously granted Cingular
the right to house a wireless facility on the same Property on
which ATTW now seeks to install its own. It contends, however,
that its decision to deny ATTW's CUP is nonetheless reasonable
because ATTW and Cingular are not "similarly situated," as
contemplated under MetroPCS. This is so, argues the City, by
virtue of (a) the cumulative impact that a second wireless
facility would have on the neighborhood; and (b) the different
permit process that governed the grant of the City's permit to
While the City fails to prove the first of these, it
persuasively argues the second.
(a) cumulative impact
The City correctly asserts that proof of cumulative impact on a
property already housing other facilities may, in some cases,
render the denial of additional facilities reasonable. See, e.g., Airtouch Cellular v. City of El Cajon,
83 F. Supp. 2d 1158, 1166 (S.D. Cal. 2000). This argument does not actually
benefit the City, however, for the City has not pointed to any
evidence in the record demonstrating the cumulative impact that
ATTW's facility would have on the property. Indeed, the City
relies solely on various provisions contained in the WTS
Guidelines for support of its cumulative impact argument. The WTS
Guidelines, as already stated, are non-binding policies adopted
by the Planning Commission for aid in evaluating CUP
applications. They cannot take the place of factual evidence.
As such, the City cannot prove that its denial of ATTW's CUP
was reasonable by virtue of the cumulative impact of ATTW's
(b) permit process
It is undisputed that at the time that Cingular was allowed to
install a wireless facility on the same Property on which ATTW
seeks to install its facility (i.e., in 1995), the permit process
governing the installation of wireless facilities was different.
Specifically, under applicable city law at the time, Cingular
only needed to apply for a building permit issued by the City's
Department of Building Inspection, rather than a CUP. See Ionin
Declaration in Support of the City's Motion for Summary Judgment,
¶¶ 3-4, Ex. A. Accordingly, Cingular was not required, as ATTW
was, to demonstrate compliance and/or compatibility with the
Planning Code prior to issuance of its permit.
The issue before the court is whether the City's denial of
ATTW's CUP was unreasonable given the change in permit process
that had taken place. The court can find no authority, nor have
the parties cited any, dealing with this issue of an intervening
change in law. The issue is one of first impression. As such, the
court holds that the City's denial of ATTW's CUP was not
unreasonable. It simply cannot, and should not, be said that the
City's denial of a subsequent permit is unreasonable where as
here such a claim is based on the prior grant of a building
permit nearly 10 years earlier, pursuant to different law, taking
into consideration different factors, and issued by a different
governing body. Indeed, to hold otherwise would expose the City
to potential discrimination claims for all prior permits issued under different laws and pursuant to different procedures. This,
in turn, would render meaningless the evaluations and findings
made by both the Board and the Planning Commission in choosing to
grant those prior permit holders the right to install their
various facilities. This cannot be what the TCA contemplated when
it was enacted. Accordingly, on the issue of whether the City
unreasonably discriminated against ATTW, based on the City's
prior grant of a building permit to Cingular, summary judgment is
GRANTED in favor of the City, and DENIED as to ATTW.
ATTW asserts, as a secondary ground for finding unreasonable
discrimination, that the City discriminated against it by
previously granting Metricom a CUP to install 16 antennas on the
same Property on which ATTW now seeks to install its own. The
City does not dispute that it granted Metricom the above CUP, but
asserts that this can provide no basis for a finding of
unreasonable discrimination since Metricom did not provide
"personal wireless services" that were "functionally equivalent"
to those provided by ATTW.*fn6
(a) "personal wireless services"
The parties dispute whether Metricom is a provider of "personal
wireless services," as that term is defined under the TCA. The
TCA, somewhat unhelpfully, defines the term "personal wireless
services" to mean "commercial mobile services, unlicensed
wireless services, and common carrier wireless exchange access
services." See 47 U.S.C. § 332(c)(7)(C)(I). ATTW contends that
the court should rely on the definition provided by the TCA itself in resolving this inquiry. The City contends that the
definition provided by Sprint Spectrum v. Willoth, 176 F.3d 630
(2d Cir. 1999), in which "personal wireless services" was
interpreted to refer to voice telephone services only, should
Neither the court nor the parties have found any Ninth Circuit
authority in which the term "personal wireless services" is
defined. As such, the court is free to look to persuasive
authority as a guide. Sprint Spectrum, however, does not
provide that guidance.
In Sprint Spectrum, Sprint desired to convert its analog
cellular technology in the Buffalo, New York area to PCS
technology, which utilized digital cellular technology. When
Sprint's application to do so was denied by local authorities,
Sprint claimed it had been unreasonably discriminated against,
and that local authorities had improperly prohibited the
provision of personal wireless services, all in violation of the
TCA. In analyzing Sprint's claims, the Second Circuit concluded
that, "in the context of [that] case," the definition of
"personal wireless services" referred to "the ability of mobile,
handheld telephones to reach a cell site that provides access to
a land-line exchange and allows phone calls to be made to and
from the national telephone network." Sprint Spectrum,
176 F.3d at 641. In other words, "personal wireless services" was
construed to refer solely to telephone services.*fn7
While the City understandably urges this court to adopt a
similar definition, this argument is too forced. The TCA would be
rendered obsolete as a policy matter, if "personal wireless
services" were read to refer only to telephone services. The
concept of wireless services is constantly evolving, and
technological advances especially since 1999, when Sprint
Spectrum was decided have brought the wireless provider market
to the point where traditional telephone-only service providers
are now providing services that expand beyond the boundaries of telephone service alone. Indeed, ATTW itself is
proof of this, as by its own admissions, it attempts to upgrade
its services to provide newer offerings that include the
provision of Internet services. See, e.g., Lee Decl. Ex. 4. As
such, the court finds that the overall purpose and intent of the
TCA supports a broader definition of "personal wireless services"
rather than the narrower definition espoused by Sprint
Moreover, this finding is consistent with the TCA's stated
definition for "personal wireless services," which is defined to
mean, in part, "unlicensed wireless services." This definition on
its face is broad enough to encompass Metricom's offerings, which
include, by the City's own admission, "wireless Internet services
on unlicensed spectrum." See Declaration of Jonathan L. Kramer
in Opposition to ATTW's Motion for Summary Judgment ("Kramer
Decl."), ¶ 10.
As such, Metricom is deemed a provider of "personal wireless
services" pursuant to 47 U.S.C. § 332(c)(7)(B)(I) of the TCA.
(b) "functionally equivalent"
The parties also dispute whether the services that Metricom and
ATTW provide are "functionally equivalent." ATTW asserts that
they are, as both Metricom and ATTW sought to provide wireless
Internet services. The City contends they are not, and points to
the Kramer Declaration in support of the fact that Metricom's
Internet services are not functionally equivalent to ATTW's
"voice telephone services." See Kramer Decl., ¶ 11.
Preliminarily, the court must first address what the term
"functionally equivalent" means. Again, there is no controlling
Ninth Circuit authority that addresses the definition of, or
requirements for, "functional equivalence" under the TCA. As
such, both parties again urge the adoption of sister circuit case
law in deciding the issue. The City relies on Aegerter v. City
of Delafield, Wisconsin, 174 F.3d 886 (7th Cir. 1999), and ATTW
relies on Nextel West Corp. v. Unity Township, 282 F.3d 257 (3d
In Aegerter, the issue was whether a provider of a one-way
paging service was functionally equivalent to two-way cellular
telephone service. In holding that the two were not functionally equivalent, the Seventh Circuit crafted its own
interpretation of what "functionally equivalent" means. In sum,
the court analogized the functional equivalence test under the
TCA to the relevant market analysis that must be undertaken under
antitrust law, and held that functional equivalence exists if two
services or products are direct substitutes for one another
(which inquiry in turn took into account service, product, and
cost comparison). See 174 F.3d at 891.
Nextel West, by contrast, took a broader approach and held
that "the equivalency of function relates to the
telecommunications services the entity provides, not to the
technical particularities (design, technology, or frequency) of
its operations." 282 F.3d at 266 n. 13. It then went on to hold
that Nextel and Sprint, the two competing providers in that case,
were functionally equivalent, as they both provided "personal
wireless communications services" to remote users.
The court finds that Nextel West provides the better
approach. Though broad in its definition of "functional
equivalence," there is no question but that it purports to mirror
the language of the TCA itself, while the antitrust analysis that
Aegerter employs is tenuous, at best; there is no indication in
any persuasive authority that antitrust law is regularly employed
as an analogous field of law in the telecommunications arena.
Accordingly, the court hereby finds that "functional
equivalence," as referenced in the TCA, relates to the
telecommunications services that the actual competing entities
provide, and does not relate to the specific design, technology,
or frequencies employed in the operation of the
telecommunications services themselves.
Having made this determination, the court must now decide
whether, under the above definition, Metricom and ATTW provide
equivalent telecommunications services. The City, through the
Kramer Declaration, indicates that the two entities do not
provide equivalent services, since Metricom provided "wireless
Internet services on unlicensed spectrum," and ATTW "provides
voice telephone services to its subscribers . . . pursuant to a
license issued by the Federal Communications Commission." Kramer
Decl., ¶¶ 10-11. ATTW, by contrast, points to the fact that both ATTW and Metricom sought to provide
Internet services. See, e.g., Lee Decl. Ex. 4 at D0659,
Given this competing testimony regarding the actual services
provided by ATTW and Metricom, the court finds that a triable
issue of fact exists as to the extent and nature of the services
offered by both entities. Only after consideration of all the
evidence as to this issue, can the court correctly decide whether
any unreasonable discrimination among functionally equivalent
providers has occurred.
Accordingly, on the issue of whether the City unreasonably
discriminated against ATTW, based on the City's prior grant of a
building permit to Metricom, summary judgment is DENIED as to
E. Prohibition of Wireless Services
ATTW claims that the City's decision has the effect of
prohibiting the provision of wireless services, in violation of
47 U.S.C. § 332(c)(7)(B)(i)(II). Section 332(c)(7)(B)(I) states
that: "[t]he regulation of the placement, construction, and
modification of personal wireless service facilities by any State
or local government or instrumentality thereof (II) shall not
prohibit or have the effect of prohibiting the provision of
personal wireless services."
A plaintiff can prove that it is prohibited from providing
wireless services by proving that it has been "prevented from
filling a significant gap in its own service coverage." See
MetroPCS, 400 F.3d at 733 (noting also that "significant gap"
determinations are "extremely fact-specific inquiries that defy
any bright-line legal rule."). Once a wireless service provider
has demonstrated that the requisite significant gap in coverage
exists, it must then make some showing that the manner in which
it proposes to fill the significant gap in service "is the least
intrusive on the values that the denial sought to serve." Id.
1. Significant Gap
The parties dispute whether a "significant gap" in ATTW's
coverage exists. Both parties seek to prove the significant gap
issue through presentation of expert testimony. But as to that
expert testimony, the parties are at odds. ATTW attacks the
expert testimony of the City's expert, Mr. Kramer. See Lee Reply Decl., ¶ 8, Ex. F. The
City, by contrast, attacks ATTW's expert, Mr. Pontin. See e.g.,
Declaration of William Sanders in Opposition to ATTW's Motion,
Ex. A. Both allege that the testimony discloses opposite results
that either a significant gap did, or did not, exist.
Accordingly, the dispute is material, and the trier of fact is
entitled to assess the evidence and choose what weight to give
2. Least Intrusive Means
For the reasons above, the court need not even reach the "least
intrusive" element, but even if it did, it would find that the
same is true as above the parties materially dispute the
various alternatives that would have been available to ATTW as a
means of filling any purported "significant gap."*fn8
In essence, the parties dispute whether ATTW could have
converted its existing TDMA facilities to GSM facilities,
retained ownership of the Cingular facility already existing on
the Property, or allowed its customers to obtain service from the
T-Mobile wireless services network. These disputes are material
in that they directly bear on whether they were the least
intrusive means for ATTW to fulfill any significant gap, if it
Accordingly, on the issue of whether the City prohibited the
provision of wireless services in violation of the TCA, summary
judgment is DENIED as to both parties.
Summary judgment as to ATTW's claim that the Board violated the
substantial evidence requirement of the TCA is GRANTED as to the
City and DENIED as to ATTW. Summary judgment as to ATTW's claim
that the Board improperly based its decision on the environmental
effects of radio frequency emissions is GRANTED as to the City
and DENIED as to ATTW. Summary judgment as to ATTW's unreasonable
discrimination claim is GRANTED as to the City and DENIED as to
ATTW, but only as to ATTW's allegations regarding Cingular; summary judgment on this claim is DENIED as
to both parties as to ATTW's allegations regarding Metricom.
Finally, summary judgment as to ATTW's claim that the Board's
decision improperly prohibited the provision of personal wireless
services is DENIED as to both parties.
IT IS SO ORDERED.
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