Federal District Court Confirms Right Of Wireless Providers To Bring Facial Challenge To Municipal Ordinances Under Section 253 Of Communications Act

On March 8, 2007, the U.S. District Court for the District of New Mexico held that T-Mobile and Verizon Wireless could maintain a facial challenge to the City of Rio Rancho’s new wireless ordinance under Section 253 of the Communications Act. The Court’s decision in Verizon Wireless (VAW), LLC v. City of Rio Ranco is another District Court confirming both that telecommunications providers can bring “facial” challenges to local ordinances under Section 253 of the Communications Act, and that providers of wireless telecommunications can bring challenges to local wireless siting ordinances under Section 253. They are not limited to challenges to local zoning decisions under Section 332(c)(7) of the Communications Act.

T-Mobile and Verizon Wireless filed suit challenging the City’s recently adopted ordinance governing wireless siting. Among other things, the ordinance prohibited the “placement, construction or modification” of wireless telecommunications facilities without a permit from the City, which involved a detailed, complex, discretionary review process. Among other challenged requirements, the ordinance imposed high fees, including an open-ended requirement that the applicant maintain a funded escrow account to pay the fees of the City’s outside consultant (who also had drafted the ordinance). T-Mobile’s and Verizon’s complaint sought a declaration that the ordinance was preempted by Section 253, Section 332(c)(3), and by the FCC’s comprehensive regulation of radio frequency emissions (RF).

The City moved to dismiss, arguing that Section 332(c)(7) is the exclusive remedy for wireless providers to challenge local zoning requirements, and that because T-Mobile and Verizon Wireless had not been denied a permit, their claims were not ripe. In its March 8th decision, the court rejected the City’s arguments and denied its motion to dismiss.

Following decisions in Sprint Telephony PCS, L.P. v. County of San Diego and Cox Communications PCS v. City of San Marcos, the court confirmed that wireless providers are not limited to Section 332(c)(7) as the sole mechanism for challenges to local zoning requirements. The court reasoned that Section 332(c)(7) provides a remedy for specific “decisions” on individual zoning applications. However, before ever reaching a denial of a specific zoning application, wireless providers, like any other telecommunications provider, can challenge a municipal ordinance under Section 253 on the grounds that the ordinance may prohibit or have the effect of prohibiting the provision of telecommunications services.

The court also confirmed the well-established point that a provider need not wait until a municipality has denied an application. The court held that T-Mobile’s and Verizon Wireless’ facial challenge to the ordinance was ripe for review because they had concrete plans for and a need to upgrade their facilities as well as new sites in development, and those plans would be subject to the ordinance’s requirements.

While the case now moves on to the merits of T-Mobile’s and Verizon Wireless’ legal challenge, the court’s decision is notable because it further confirms the rights of wireless providers, in particular, to be free of local government ordinances, requirements, or regulations that may prohibit or have the effect of prohibiting the provision of telecommunications services, in violation of Section 253. Rather than subject their deployment to traditional wireless zoning requirements, and rely on post-denial appeal under Section 332(c)(7), wireless operators can challenge the local wireless zoning requirements, which are traditionally burdensome and highly discretionary, under Section 253. This is an important legal option, given the weight of precedent establishing that Section 253 preempts local ordinances that, on their face, condition telecommunications deployment on burdensome application processes and unfettered local discretion.

Davis Wright Tremaine is at the forefront of advancing the legal rights of wireless providers under Section 253 and Section 332. If you would like more information regarding the March 8th decision or others like it, please contact us.