By now many/most/all? of you know that on September 11th, the 9th Circuit Court of Appeals ruled in Sprint Telephony PCS, L. P. v. County of San Diego case. The court held 11-0 that the ‘Auburn’ decision standard announced by the same court eight years ago was wrong, and reversed itself.
The now-discredited Auburn permitted a telecom carrier to facially attack a zoning ordinance. A facial attack is one where the underlying facts of a particular case don’t really matter. The court only looks at the face of the ordinance. As applied to telecom ordinances, the Auburn facial attack meant that if a court could read an ordinance on its face and find that it may prohibit or have the effect of prohibiting telecom service in a community, the court would strike down the law. The facts giving rise to the court challenge were, frankly, irrevelant.
In most court cases, the courts look at a law “as-applied” (in a particular case and with a particular set of facts) to determine whether it is legal. Facial attacks, such as those that were applied using the Auburn standard, never get to the facts as applied.
As the en banc panel of the 9th Circuit found, and as Judge Graber wrote (in small part) for the entire panel:
We find persuasive the Eighth Circuit’s and district courts’ critique of Auburn. Section 253(a) provides that “[n]o State or local statute or regulation . . . may prohibit or have the effect of prohibiting. . . provision of . . . telecommunications service.” In context, it is clear that Congress’ use of the word “may” works in tandem with the negative modifier“[n]o” to convey the meaning that “state and local regulations shall not prohibit or have the effect of prohibiting telecommunications service.” Our 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.”
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Please click here to download the full decision.
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I expect that Sprint will ask the Supreme Court to grant certiorari, and I also expect that the request will not be successful. Ultimately, I believe this ruling will mark a return to (more) common sense in wireless siting cases and hearings.
