WASHINGTON-A federal appeals court last week said that a federal court needs to review a decision by the City of San Francisco to deny MetroPCS’s tower application.
It was the first time that the U.S. Court of Appeals for the 9th Circuit had waded into tower-siting waters, and it was a win for neither the cities nor the wireless industry.
“This case marks yet another episode in the ongoing struggle between federal regulatory power and local administrative prerogatives-the kind of political collision that our federal system seems to invite with inescapable regularity,” wrote Judge Richard Cudahy.
MetroPCS wanted to site a tower in a neighborhood already served by five other providers. After neighborhood opposition, the San Francisco Board of Supervisors overturned the planning commission and denied MetroPCS a conditional use permit.
A federal court in California mostly sided with San Francisco, causing MetroPCS to appeal the case.
MetroPCS tried to argue that San Francisco was violating the Telecommunications Act of 1996, which restricts the latitude cities have in denying tower sitings.
The 9th Circuit found that San Francisco had compiled with the telecom act but also found there was disagreement as to whether the city had discriminated against MetroPCS.
“In ruling that the city’s decision did not unreasonably discriminate against MetroPCS, the district court employed a somewhat confusing and contradictory analysis,” wrote Cudahy.
The 9th Circuit seemed concerned that neither the city nor the lower court reviewed competing sites before denying MetroPCS’s preferred location.
“While it is undisputed that there are other wireless facilities in the same neighborhood, there appears to have been no detailed inquiry into the similarity of these existing facilities to the proposed MetroPCS facility,” wrote Cudahy.
The lower court must now undertake this review.
We “remand the case for further proceedings to determine whether the proposed MetroPCS facility was similarly situated to competing facilities approved by the city, and if so, whether the city discriminated against MetroPCS with respect to the proposed and the competing facilities,” wrote Cudahy.
