i think the most important case is depending what you got not getting more but you can do whatever you want but i think both are important and i believe the court was correct in granting the injunction and incorrect in denying the civil rights remedy and i'd like to address both of them i think actually the civil rights issue is perhaps the more sweeping issue because as well the scariest without the civil rights remedy section two hundred fifty three cannot accomplish what three thirty two in the city probation to carry challenges the ordinance under to fifty three the three thirty two case is expedited by statute the court finds a denial unlawful and backed by consensus case law issues a writ that compel of free speech and so forth i don't see where you got any civil right carry on hanna you had a controversy as to whether the ordinance is implied and then you don't have any cas freestone and a clear blessing that you don't need a constitutional right you're only a federal right which can be conferred by statute or constitution and when it's conferred by statute there's a three test analysis to determine whether that statute triggers the civil rights act  none of those three factors are disputed in this case instead the county asserts a statutory construction argument which which i'll address in the statutory construction supports the fact that congress intended that section fifty three not supplant the civil rights act in addition there's supreme court review of the statutory construction argument is very simple point out the portion of two thirty three which states course of held that there's an implication you have to indicate that right by private cause of action but here you have a situation where the federal trade commission  two fifty three does have rights creating language and does create a private right about then and i will point that out and help the actual language of the statute specifically defines a class of beneficiaries and in fact the best i think the telecommunications services he went on to write this is not a statute such as they want to dressed in terms of university roche's though the lead case cited by the respondent that simply states that an enterprise will not qualify for federal funds specific conduct that manger third parties the benefit parties telecommunication service providers are not merely incidental beneficiaries they receive unconditional protection against injury a state or local government action i think we can also young that you know constitutional violation here you've got a corporation what crimes we don't litter we don't assert and we don't need to start a constitutional violation the then the court has made a clear  the by a comprehensive remedial scheme for example a loss of supplier did the implication the rebuttable presumption is that the civil rights remedies apply unless they're taken away where the rights conferred on telecommunications companies under specifically confers the right that judge hart's wrote about that unconditionally protects telecommunications providers any entity providing telecommunications services from injury a state or local governmental to answer judge based question earlier the other authority i would cite is right in going saga versus doe with the u s supreme court recognized that title six does confer private right of action and the language of title six is remarkably similar to the person in the united states shall be subjected to discrimination under any program or activity receiving federal financial assistance the difference between that and two fifty three is active always resist passive title six is object no person  be subjected subject program or activity section two fifty three just flips the order it's subject state or local statute or regulation verb prohibit or have the effect of prohibiting an object any telecommunications entity oysters not i don't think that was the intent of the civil rights act under bussing versus freestone analysis is well we also can draw from the courts the supreme court's reversal of this court's decision even searches rancho palos verdes in that decision this court adopted a framework it took a statute not a constitutional provision in fact one closely related to this case section three thirty two of the telecommunications act and found that the civil rights act does apply the supreme court every piece of the court's analysis every piece of the framework except one issue the supreme court disagreed with this court and found that section three thirty two contains a comprehensive remedial scheme and on that basis alone the supreme court reversed the decision if you apply that same analysis to section two fifty three you must reach the opposite conclusion because section two fifty three not only omits a comprehensive remedial scheme you don't need any remedial scheme whatsoever  redevelopment and housing authority the supreme court allowed in one thousand nine hundred three claim despite the statute inclusion of administrative remedy the court noted there that the other cases which had denied nine hundred eighty three protection because of a three remedies as a means of enforcing a right that was conferred in a different statute and that's absolutely critical to do that here because of the situation that otherwise results in section two hundred fifty three case when the court finds that the carrier is right and the ordinance is unlawful the court is required to issue a narrowly tailored injunction nothing more the court can't tell the county or any city to adopt a certain model ordinance it's a narrowly tailored injunction so as a fifty thousand telecommunications towers and antenna structures throughout the united states and we have to make is to mobile p c a urge the court to uphold the decision of the district court and striking down the deputy over that or the wireless telecommunications ordinance in san diego and  what i want to ask is very simple the district court described his concerns as follows the information submission of virgins from the qualification requirement is unreasonable come for a violation they go to penalties but there's a whole raft of local ordinances under the nose is it to position of the industry that are in this case that sprint doesn't have to no your honor sprint t mobile and all of the wireless carriers do comply all of the wireless carriers do need to comply with zoning ordinance where those are properly enacted i believe this really two critical issues for consideration one the lack of discretion which the lower courts that was the unfettered discretion in the county of san diego and to the fact that this ordinance does not apply to other utilities similarly situated in the right way such as electrical and other communications providers that is specifically wireless ordinance and at the end by leaving out the other utilities and in the briefings and quite a bit of detail about the presence of those utilities in the right away none of which are subject to the conditional use permit or of the local ordinances applying to wireless transmission what we briefed and what we believe is the importance of the separatists that this standing alone of two fifty three the right of carriers and trade associations  facial that's correct your honor and that's the that's the critical point what why what is violence of the of any portion of the telecommunications act if the city regulates different what you are going you do have the you have the nondiscrimination provisions in section three thirty two that says that if the carriers are functionally equivalent you cannot discriminate on reason to discriminate among the providers under two fifty three it's much more bro it says it cannot be a prohibition and that's where we go back to auburn and berkeley where the court this court was very clear about the broad reach of two fifty three of course auburn has distinguishable and there is a good morning may please the court thomas blanton senior deputy county council on behalf of the county of san diego section two fifty three and the telecommunications act is not applied to the county's ordinance at all two fifty three is directed at barriers to entry a barrier to entry would be a situation if the county decided to have pervert preferred providers and sue to a franchise in order to select those providers don't we owe deference to the district court's finding of the facts here at the way that your ordinance operates is a catch twenty two it may not be a formal berry you're saying sprint can come in here you can allow us to make an application but the amount of your easy amount of hoops through which they must jump and the amount of unfettered discretion left to your director discretion by this religious no judge failure or not this was a ruling on summary judgment there can't be any fact finding that it's done well you can make a fine if there is no tribal issues material fact but that your respect to section two fifty three and all of the court's cases it said that the prohibition under those kind of cases are franchise regulations that would require an up or down decision and yes you may participate in the local market no you may not that's reviews well there's no dispute as to what the ordinance required as to whether it's a prohibition of service to the county granted six of the ten applications that were before it from sprint so certainly there's examples that the ordinance has not had a prohibit effect but again the principle argument here is that two fifty three doesn't even apply to these kind of ordinances in study of all burn the court applied it to a franchise in berkeley it was a franchise regulation this is not a franchise regulation a franchise is a barrier to entry whereas up or down if you get permission and you can participate in the market if you don't get permission you can't participate at all the county's ordinance has no impact on sprint's participation the market before the ordinance was an active spread had dozens if not hundreds of facilities within the county those facilities remain and there's nothing that's happening with respect to the county's ordinance that will prevent sprint from that local governments have the ability to regulate based upon a statics for example the case law is crystal clear on that the congressional record is crystal clear on that and of course congress understood that decisions are made in a vacuum  they're made pursuant to zoning ordinance you just don't go up and make a decision you have criteria in your ordinance and then you apply that criteria well statics is extremely discretionary as i said in the brief beauty is in the  is in the eye of the beholder some people may love a jackson pollock painting others may hate it so congress clearly intended for why discretion is to be in the hands of local government three thirty two c seven is intitled preservation of local zoning authority again they intended to preserve the authority of local governments there is a specific provision in the legislative history saying that congress intended you to apply your generally  ordinance provisions and that's what's being applied here is the county's owning ordinance provisions there is also a provision in three thirty two as amicus counsel and then providing that in order to state a discrimination  has to be among functionally equivalent services and the courts and chirping that have held that land line facilities and wireless are not functionally equivalent so what you have here is a escape the specific protections provided by three thirty two by asserting a claim under to fifty three ebay and while there may be a need for heightened scrutiny in the two thirty three a franchise context when you've got an up or down decision where it's participation or no participation there is no need for that with respect to decisions on individual wireless applications if a decision is made under the ordinance and a pplication is denied all that means is they can't install that one facility that they proposed perhaps they can camouflage it so that the same application and it will be granted or perhaps they can't decide that would be in a different location that would allow them to serve and that under those circumstances they would be able to submit the same application again and they would be able to do sell and so there's no prohibition of services at all with respect to th and again the district court seemed to be operating on the premises that the county was going to misapply its ordinance in a way that was burdensome or onerous the information requirements to give the director and the district court was concerned that there w limitation on the specific kinds of additional information that the county could require but there were it had to relate to the project it wasn't related to the fitness of the company to do business and that and so the evolver and was what the court was concerned about you couldn't possibly put in all the possible information that would be required up in advance because they're going to be different considerations the district court was concerned about unfettered discretion but the ordinance specifically lays otherwise out sprint would have to comply with that under the worst scenario is met so well i think what the district court here is found that the ordinance couldn't be severed and so that he's he prevented the county from applying its ordinance at all i think what i'm learning in my so it may well be that that's too broad a determination once the ordinances can be severed it very well may be that that was too broad of a determination here under severance it wasn't an issue that was brought up below and it's certainly in a possible that the county could amend its ordinance to deal with any problems that the court may find very difficult to sever the provision which gives unfettered discretion to the director francisco a decision made pursuant to a city and county of san francisco ordinance that allowed them to deny a use per minute if it was unnecessary if this court is to find that the county ordinance goes too far that there's too much discretion there was no need for metro p c s to consider even the denial of the permit application because the zoning ordinance itself would have been violation of the telecommunications act because a necessary standard is much broader than any standard that is exist in the counties ordinance so effectively that decisions going to be overruled if this court were to find that the counties ordinance gives too much discretion there are dozens if not hundreds of that the county has gone too far all those cases have been overruled effectively and three thirty two specifically sought to preserve local zoning authority and said you can deny applications based upon very discretionary this terminations like action in federal district court challenging it and that's what the metro p c s talked about and it set up a pretty high burden judge bright for someone challenging those applications so that's why what this is is in this tape an attempt to escape congress specifically sought to preserve by bringing a claim under two fifty three ok and this is the first circuit case in which any plaintiff has bought the two fifty three a claim based upon a wireless congress specifically amended the statute to take out any f c c ability to regulate decisions on for wireless providers and three thirty two it's there under two fifty three as we say in our brief that's another indication that congress did not intend that these individual wireless siting ordinances be reviewed because congress specifically took that away from the f c c but exist on two thirty three it's significant that this statute was passed in one thousand nine hundred six a decade ago there are dozens there are hundreds of cases under three thirty two that have challenged decisions made pursuant to ordinances to regulate wireless providers there are decisions where challenges have been made they chillingly to ordinances on the basis of a prohibition under three thirty two they have been able to cite only four cases involving two fifty three and ordinances that govern wireless and in most of them that wasn't even the issue they cite debt during cox communication which was actually a three thirty two case they  carlsbad and unpublished decision from judge keep in the southern district of california and that case she actually found that there could be a challenge under three thirty two facial each of the ordinance and spread in the same attorneys argued that and said yes there can be but they don't want three thirty two facial challenges because congress has been very specific and three thirty two they said prohibitions which are outright bans violate the telecommunications act and decision should be bait on a case by case basis that's what the court recognized in metro p c s in its decision it talked about individual denials but it also said of course an this applies to barriers to entry and that's all the cases that have been have looked at that and it involves franchise type of regulations which are essentially if you want to participate in the market then you need our blessing but you might be all right if it's no state may prohibit by franchise or by license period but as prohibited or have the effect of prohibiting doesn't language allow a provider to say this ordinance works all very nice and well but the effect of the ordinance is well i think the drafting could have been better but the same language is used in section three thirty two and it says the regulation of the placement construction and modification of personal wireless service facilities by any state or local government or instrumentality there of shall not prohibit or have the effect of prohibiting the provision of personal wireless services it's the same language and we know what congress met when they enacted three thirty two as to that prohibition because they said specifically in the conference report that it meant a general ban or policies that have the effect of banning that's the law that's what they intended to be the standard to be applied here when we're talking about wireless and decisions based upon individual wireless applications and three thirty two c seven  except as provided in this paragraph nothing in this chapter shall limit or affect the authority of state or local governments or instrumentality thereof over decisions regarding the placement construction and modification of personal wireless service facilities now they want to argue that congress intended to preserve your authority for decisions but take it away when it comes to regulations all in the same act passed at the same time that is just not credible congress knew that you don't pull these decisions are thin air the decisions are based upon zoning ordinance set forth criteria so their positions essentially it's ok to deny the permit on a very subjective standard three and have that be the standard why it's a simple answer to thirty three the courts of imposed heightened scrutiny because it's an up or down franchise situation either you're in you're out three thirty two the counties ordinance it's not that case congress didn't want that kind of heightened scrutiny applied because the stakes aren't the same the stakes are individual decisions on individual wireless applications  aren't you participate in the market or you don't participate in the market if the county were to act a franchise regulation and say ok if you want to participate you need a license from us that would be different but congress in three thirty two has laid out the framework for these the language of the statute the operative language is the same and this circuit has interpreted it metro p c s and every other circuit just about has interpreted it and they've done it in a way that  that does exactly what the legislation says it preserves local zoning authority and there's lots of legislative history in the conference report about their effort to preserve the local zoning authority  regarding placement modification or construction of wireless facilities three thirty two is the playing field for decisions under a lawful ordinance section two fifty three the plain language of the statute it applies to statutes regulations and other legal requirements the w t o is a legal requirement it's also a county statute that's where the basic dichotomy simple when you're challenging the ordinance section two fifty three is the right statu regarding franchises versus zoning requirements i believe that puts form over substance again through fifty three speaks of statutes regulations or other legal requirements not just franchises as judge bear pointed out they apparently responded but asked the court to conclude that as long as the city or county refrains from an outright ban whether via franchise or otherwise it can apply reserve unfettered discretion and apply that discretion to say no to every single do not necessarily how it's going to apply but under the county's theory that possibility of an effect of been through syria the nile's would be very real i'm going to judge brights question the carrier's only recourse would be to suffer these serial denial to each time a district court file a challenge on each one the county offers no explanation how requiring a federal case for every site while ignoring a plainly broken process is consistent with the underlying purpose of the t c to promote rapid deployment statute not the effect but secondly look to the effect here is ignoring plain evidence that we've put in that the the the county has used its unfettered discretion to create a virtual bottleneck of applications sprint put in evidence showing that some climate to be effective it just to fulfill that goal the t c has to provide two things one relief from unlawful denials and two relief from unlawful processes and section two fifty three is the relief from the unlawful process are you  has a right of action to bring that to court i don't think that an ordinance just by virtue of reserving some discretion in some capacity necessarily involve necessarily violates two fifty three we're not and keep in mind also we're only we have one ordinance and f nine violations and we admit that ordinance mixes both the district court found it goes too far in undercity harbor and clearly that's the right decision and then the district court found that it could not be severed while giving meaning to the counties intent so it just powerless they can always come back within the other one and another one and another one and we could be here twenty years from now on ordinance number ten arguing this one violates two fifty three two right now their perception is that their only risk of that pattern is the sunk cost  salaried attorneys and the mild sting of an injunction that can only stop one violation at a time that's why we need the civil rights act you ensure that the county bears the expense or have a tory practices and a pattern of those practices thank you