inc with the court's permission i would like to reserve approximately three minutes for republics you have to have track of your time and thank you the telecommunications act sets up a regulatory scheme for wireless services the underlying goals of that regulatory scheme are to preserve and to foster competition amongst carriers and to encourage the rapid rollout and deployment and expansion of wireless service to consumers to further th telecommunication apps act has the following features first it gives the f c c the authority to regulate the number of wireless carriers in any given market in order to efficiently utilize the spectrum secondly it restricts local zoning bodies authorities regulate the placement and construction of wireless equipment and wireless facilities and it does so in a number of ways it prohibits  prohibits regulation based on radio frequency of mission concerns furthermore localities are prevented from using pretextual reasons to regulate in a manner that's forbidding by the act in the way that the telecommunications act accomplishes that and is its requirement of a written decision that is supported by substantial evidence in the record now against that background against that regulatory scheme the city claims that it is able to deny a permit to my client a metro p c s a wireless carrier that lightens by the f c c to provide wireless service in the city of san francisco on the basis of the cit view that an additional wireless server either in the city of san francisco or in the neighborhood where the equipment would be installed is in the city's view high necessary or redundant the regulatory fai in a number of places it talks about about the supposed lack of necessity in each of the it is true that there were some wireless facilities that metro p c s had been able to install  because either they didn't require a conditional use permit or they didn't that was not challenged that is a far insufficient number for the metro p c s to complete its network but  there to what that is that you are required to be allowed to complete the network or what what do you i'm struggling for even the right question how that's too much but we are at the margins not enough on how do we decide that right the answer is that we're not entitle to have a system that is absolutely perfect and has no dead spots written denial that supported by substantial evidence in the record now it is an attempt to balance those two legitimate or i think the case is sometimes called traditional zoning concerns can be accommodated those are things like making suppose that under review standards we would have to conclude that the visual blight asked fact was a supported by substantial evidence is that the end of oh absolutely absolutely it is a flat out prohibition in the statute of limitation not a general ban just let's suppose that your case comes down to whether it turns out that you've got a significant gap in your coverage and they've got a concern about visual bleich right who wins and that you know you can't afford advice substantial evidence actually substantial evidence doesn't even come into the picture in connection with  what we have is we have a denial motion by the city that was supported by presumably supported by two reasons one perhaps allowable under the statute the other flatly prohibited by the statute the and which was the principal basis for the denial in this case namely they cannot deny on the basis that the city used if there are enough characters already in serving that locality we've discussed in our brief can be dealt with prohibition requirement of the statute that's right your honor and alternately are you how you construe the prohibition that's right that actually there are several cases in which cities are the tempted to deny permits were wireless facilities based on their view that we have enough carriers another carrier would be unnecessary or redundant and some of those pieces are supposed to have a so called first all the cases that have treated the issue of whether necessity can be a grounds for denying a wireless printer we've all said that they cannot they've done so not only want to prohibition ground that your honor is referred to but several of them also grounded on the discrimination ground just to explain that neither are exactly either and in fact both if they discriminate is a pretty blatant rank discrimination against the new market entrant and in favor of the so called the any provider rule the nomenclature actually is somewhat confusing so just to be clear there is a minority rule that the city is arguing for that the district court below rejected and the majority of courts reject including the majority of circuit cour majority of courts take as well as the district court here takes is the so called any provider rule which means that metro p c s is entitle to build out the system and if by denying a permit for this facility it would create a significant those language and some of these opinions about remote use or so i'm trying to understand if we're looking to see from a consumer side of the issue where we look to the consumers within the affected neighborhood and we look to the entirety of san francisco on the theory that there are people driving through richmond who don't want to fall off and if so who is the remote user that's being referred to in the opinions that are talking about looking to the benefits of mobile communications is for emergency purposes it does you very little good to have a cell phone in case your car malfunctions and i have a great down in front of the geary street parking garage and there you cannot get service amongst lawyers that you know i will be offended if you say no and that was what i was going to get at the old joke is that the only motion that's always granted to see with ponti motion so when the order said what is the relevance if any of these cases one feels a little going morning william sanders deputy city attorney for the city and county of san francisco you've just heard mr p c s argue that this case is about the f c c is authority to license spectrum and regulate entry of wireless carriers nothing could be further from the the district court level were not the subject of the summary judgment motion that was decided by the district court and we're not trying to fight for appeal so at some point those close claims might be heard here but they're not legitimately before this court thirty two sixty seven which really involves four components number one which is the preservation of local zoning authority statute which is an issue here and there are four components to that claim that are at issue here the first is that stansell evidence component the second is the unreasonable discrimination component the third is the effect of prohibition or the prohibition component and the fourth is the whether the the radio frequency preemption component nothing in this act shall limit local zoning authority except as provided here and so if you're starting to look at what other sections of the communications act say about the f c c is license authority you're taking away the limited nature of the preemption that's available here this statute the purpose of the statute the overriding purpose was to was to preserve local zoning authority with specific limitations on that authority let me ask you a honor and i think if you look at what what the circuit courts have done with discrimination claims first of all discrimination must be unreasonable so the first thing the courts look at is what was the basis for the local governments decision in the first place was that decision based on substantial evidence the courts have said that how can a decision based on substantial evidence in the written record implying local zoning laws be unreasonably discriminatory that's the statute and weight and weight of the balance of the approached the congress had visions of that preservation of local zoning storing being paramount and the protection of the carriers being secondary and reverses it and makes the mere fact that one carrier has ubiquitous seems coverage in the city of san francisco discrimination if the city which has issued thirty permits to metric p t s metro p c s is providing service in the city they authority is paramount so when the city the board of supervisors used the necessity standard here now sets in before the community the board was using a standard it has used for a long time with respect to any conditional  moves opinion which is to say you don't have a wireless service which is a mobile service by applying neighborhood specific criteria which will create big holes in the service providers carrier a permit to construct facility the carrier is not going to get better service the carrier is not putting up a site that it doesn't need clearly they want that they want the site they believe the site will provide their coverage coverage with their  think that's quite right you were going to answer my remote user i want to say they looked at it from two perspectives by the amount looking at it clearly from the perspective of residents of the neighborhood they were looking more just for residents of the neighbor they were looking at the neighborhood that the city's planning cuts as the neighborhood and the community that would also mean people who don't live in the gary carter there but come there to shop try through on their way to the beach so i think remote user means people using their telephone site is necessary to meet the community needs so i'm trying to understand from that were supposed it was assumed that we're both mobile users and people within the community  correct that's correct from outside the richmond area testified that there was no problem in the richmond district can't say that all of the test all the people who testified were residents of the richmond district there are people from outside of richmond desperate to get testify here but all of the testimony about coverage in the neighborhood at least from other carriers press consistent and even metro p c s his own employees  very i think with respect the question the issue is it me maybe you're right maybe all that the act requires is that within a particular neighborhood as long as there is an adequate number of servers so that they have a choice among not just one more novelists or functional monopolist but if you can get a number you can rent nextel or whatever and it's too bad of metro p c s or the late for it could be that one looks to see whether or not on the competitive promoting competitive aspects of the t c s that you look to the overall wireless community because maybe the community in this case the relevant geographical market to borrow and i trust terms is the market defined by metro p c s which  greater pain area and if they can establish that their customers once they hit the richmond district have serious drop off and service is that not a relevant consideration that has to be taken not relevant under the prohibition test as this court follows the fourth circuit general ban task for the second and third circuit single provider version of the significant gap test is only relevant if this court wants to supervisors they all their maps showing metro p c s theoretical coverage in the area at the time of that hearing before the ford metro p c s the service was not available they couldn't do what other carriers do which is go around and do a drive past and show exactly where they have coverage and didn't have coverage and their own the only testimony about the validity of that test was to say it's an exact tool without really any explanation of how that tool is work and we move  a year later we're at the district court metro p c s the services now available they're providing service here in san francisco they have lots of customers they're telling their customers we have great service here in san francisco what evidence  forward with in the district court to prove that it has to get it has testimony from one of its employees he says we don't have adequate coverage in the recent richmond district no explanation of what adequate means and you heard m even if you would accept the view that they need fifty antennas there's nothing which says that this is one of those antennas they have thirty where did they need the other twenty we don't know the answer to that question all we know is what evidence they ha facility being constructed and how many other facilities are there in the given area and that's the problem with the evidence in this case there is no evidence of any similarly situated facilities the evidence is that the city has didn't meet their burden because they provided no evidence to the court on that issue and is relying essentially on a per se discrimination approach if you let other people provide service here you are discriminating against  regardless of what those facilities look like why they were permitted what the situation is what the carrier showed when it got its permit they are just saying you let other people in you don't let us in that's discrimination that essentially makes the promise of preservation of local zoning sardi illusory because you can't let everyone you can't keep everyone out because then you can have a general ban one person and then you're discriminating against everybody else who tries to come in the interplay between the effect of prohibition and the only reasonable discrimination claims it's not well laid out between the cases judge fisher was asking earlier does does a prohibition claim trump a substantial evidence claim to make a bridge analogy and i think it really depends there on how you look at this balancing test that congress created inspections three thirty two thirty seven if you look at what congress called the statute and what congress intended to do was to which is to preserve local zoning authority you have to say that if this decision is supported by substantial evidence it stands unless really there is there is a banning all carriers to providing services or unreasonably evidence apparently that there's there's no evidence what other sites in this facility look like and why those sites are granted why this one was denied that's the type of that evidence that's necessary to show a reasonable description reasonable discrimination c now been brought up here are virtually invisible if i didn't if my client didn't put an arrow pointing to where they are i daresay the court in the public would not even be able to see them it is it  are not in the record i do concede that i can i ask you another evidence question where is there any evidence other than from residents in the richmond district did you put forward any evidence from anyone or could you at any time put in evidence to planning staff with the board of supervisors all throughout was extensive radio frequency engineering evidence of exactly that issue that this site was necessary i think something that's important on this issue is showing the record does not appear to support the board's decision that metro p c s did not need the installation so it was unproven and there is not substantial evidence of what the community what mr sanders is suggesting the community arguing for my time is about out if i could just leave with one closing thought it would be as follows i think it is quite interesting that we have quite a few of the other decision to the contrary they understand that this is a dangerous decision that the city has made and that the district court has allowed to sting and it has widespread ramifications not only for this one site not only for metro police u s and seeing francisco but for