FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

METROPCS, INC., a Delaware 

Corporation,

Plaintiff-AppellantCross-Appellee, Nos. 03-16759

03-16760 v.  D.C. No. THE CITY AND COUNTY OF SAN

CV-02-3442 PJH FRANCISCO and THE BOARD OF

SUPERVISORS OF THE CITY OF SAN OPINION

FRANCISCO,

Defendants-AppelleesCross-Appellants. 

Appeals from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

October 4, 2004—San Francisco, California

Filed March 7, 2005

Before: Richard D. Cudahy,* Susan P. Graber and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Cudahy;

Partial Concurrence and Partial Dissent by Judge Graber

*The Honorable Richard D. Cudahy, United States Circuit Judge for the

Seventh Circuit, sitting by designation. 

2707
COUNSEL

Martin L. Fineman, Davis Wright Tremaine LLP, San Francisco, California, for the plaintiff-appellant/cross-appellee.

William K. Sanders, Deputy City Attorney, San Francisco,

California, for the defendants-appellees/cross-appellants.

James A. Heard, Mackenzie & Albritton LLP, San Francisco,

California; Steven E. Grill, Devine, Millimet & Branch, P.A.,

Manchester, New Hampshire; Scott J. Grossberg, Cihigoyenetche, Grossberg & Clouse, Rancho Cucamonga, California;

Paul J. Lawrence, Preston Gates & Ellis LLP, Seattle, Washington; and Daniel Pascucci, Fish & Richardson, P.C., San

Diego, California, and Paul L. Weisbecker, Litigation Counsel, Cingular Wireless LLC, Atlanta, Georgia, for the amici

curiae. 

METROPCS, INC. v. SAN FRANCISCO 2711
OPINION

CUDAHY, Circuit Judge:

MetroPCS brought the instant action in the District Court

for the Northern District of California, alleging that a decision

by the San Francisco Board of Supervisors denying

MetroPCS permission to construct a wireless telecommunications antenna atop a city parking garage violated several provisions of the Telecommunications Act of 1996 (TCA).

Specifically, MetroPCS alleged that the Board’s decision (1)

was not “in writing” as required by the TCA, (2) was not supported by substantial evidence, (3) constituted unreasonable

discrimination among providers of functionally equivalent

wireless services, (4) prohibited or had the effect of prohibiting the provision of wireless services and (5) was improperly

based on environmental concerns about radio frequency (RF)

emissions. 

Both parties moved for summary judgment, and the district

court granted the City’s motion for summary judgment as to

all claims except the prohibition claim, ruling that material

questions of fact remained as to whether the Board’s decision

had the effect of prohibiting the provision of personal wireless

services. Both parties now appeal the ruling below, and we

affirm in part and reverse in part the district court’s decision.

I. BACKGROUND

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. And as

most often happens in such cases, the courts are summoned

to re-strike the balance of power between the national and the

local. More specifically, we are called upon to interpret several provisions of the TCA, an exegetical effort having implications for Federal Communications Commission (FCC)

2712 METROPCS, INC. v. SAN FRANCISCO
licensing authority, wireless telecommunications companies

and municipal zoning authorities alike. The stakes of the current dispute are especially high since this case involves several important questions of law that have not yet been

authoritatively addressed by this Circuit.

The basic facts of this case are not in dispute. MetroPCS is

a provider of wireless telecommunications services. It is

licensed by the FCC to construct and operate radio transmitting and receiving facilities in San Francisco, Oakland and

San Jose, California (the Bay Area). On January 15, 2002,

MetroPCS submitted to the City of San Francisco’s Planning

Department an application for a Conditional Use Permit

(CUP) to install six panel antennas on an existing light pole

located on the roof of a parking garage at 5200 Geary Boulevard (the Geary site). The proposed facility was to consist of

(1) six panel antennas mounted 53 feet above the sidewalk

grade on an existing light pole on the roof of a 42-foot-high

parking garage, and (2) equipment cabinets mounted on an

existing wall on the garage roof. Each antenna was to be five

feet long and painted to match the garage. The proposed

installation was designed to improve MetroPCS’s wireless

service coverage in the Richmond District, where the Geary

site is located. MetroPCS chose the Geary site after evaluating

the technical feasibility of several sites in the area and considering community objections to alternative site locations. 

Under the San Francisco Planning Code, the Geary site is

located within an “NC-3” or “Moderate Scale Neighborhood

Commercial District.” In an NC-3 zoning district, a wireless

facility (such as a panel antenna) is considered a public use

that requires a CUP from the City Planning Commission.

Because the Geary site is located on top of a commercial

structure in an NC-3 zoning district, it is classified as a Location Preference 4 under the City’s Wireless Telecommunications Facilities Siting Guidelines — it is neither a highpriority site nor a “disfavored” site. On April 18, 2002, the

San Francisco Planning Commission held a public hearing to

METROPCS, INC. v. SAN FRANCISCO 2713
consider MetroPCS’s application for a CUP at the Geary site.

At the close of the hearing, the Planning Commission voted

to grant MetroPCS’s application. The Planning Commission

later adopted written findings and drafted a written decision.

These findings included a determination that the proposed

MetroPCS antenna facility is necessary to MetroPCS’s service coverage in the Richmond District and “both necessary

and desirable” for the community. 

On May 20, 2002, Richmond District resident Robert Blum

filed an appeal of the Planning Commission’s decision with

the City Board of Supervisors (the Board). Mr. Blum was

joined by some 80 local property owners, representing almost

60% of the land area within 300 feet of the Geary site, who

signed petitions in support of the appeal. Hundreds of other

San Francisco residents also signed a petition opposing construction of the MetroPCS facility at the Geary site. Consistent with applicable local zoning procedures, the Board of

Supervisors held a public hearing to consider the appeal on

June 17, 2002. At the hearing, a number of community members (including Mr. Blum and his son) voiced disapproval of

MetroPCS’s CUP application. Local residents asserted, inter

alia, that the antenna facility was not necessary for MetroPCS

or the community since the Richmond District already enjoys

excellent wireless service, that the facility would create a

visual blight detrimental to the neighborhood character and

that the facility would produce harmful RF emissions hazardous to public health. 

Representatives of MetroPCS — including company managers and technical staff — appeared before the Board to

speak in favor of the proposed facility, claiming that the

antenna installation is necessary for MetroPCS’s service coverage of the Richmond District and that it is an unobtrusive

facility that will not constitute a visual or industrial blight on

the neighborhood. At the conclusion of the hearing, the Board

of Supervisors unanimously voted to overturn the decision of

the Planning Commission and to deny MetroPCS the CUP.

2714 METROPCS, INC. v. SAN FRANCISCO
The Board’s findings were later formally adopted in a fivepage written decision disseminated on June 24, 2002. 

In articulating the bases for its decision, the Board’s written

opinion formally found that (1) the proposed facility is not

necessary to MetroPCS’s ability to service the Richmond District around the Geary site, (2) the facility is not necessary for

the community, since there is already adequate wireless service in the neighborhood around the Geary site, (3) the proposed facility would constitute a “visual and industrial blight”

and would be detrimental to the character of the neighborhood

and (4) the proposed antenna facility is not in conformity with

and would not further the policies of the City’s General Plan.

The Board’s decision asserted that its denial of the CUP application did not reflect unreasonable discrimination against

MetroPCS, did not limit or prohibit access to wireless services

and did not limit or prohibit the filling of a significant gap in

MetroPCS’s service coverage. The Board also maintained that

the proposed facility was not the least intrusive way to provide wireless services in the Richmond District. 

On July 17, 2002, MetroPCS filed a complaint in the District Court for the Northern District of California claiming

that, in denying its application for a CUP, the City (via the

Board) had violated several provisions of § 332(c)(7) of the

TCA. Both MetroPCS and the City moved for summary judgment on all claims, and on April 25, 2003, the district court

issued a decision granting in part and denying in part the

City’s motion for summary judgment, and denying in part

MetroPCS’s motion for summary judgment. MetroPCS, Inc.

v. City & County of San Francisco, 259 F. Supp. 2d 1004

(N.D. Cal. 2003). 

Specifically, the district court held that (1) the Board’s

written denial of MetroPCS’s CUP application constituted a

decision “in writing” as required by § 332(c)(7) of the TCA,

(2) the Board’s decision was supported by “substantial evidence,” (3) the Board did not unreasonably discriminate

METROPCS, INC. v. SAN FRANCISCO 2715
among providers of functionally equivalent services and (4)

the Board’s decision was not impermissibly based on concerns over RF emissions. The City was granted summary

judgment with respect to its claims on each of these issues. Id.

However, the district court also held that significant questions

of material fact existed as to whether the Board’s denial of

MetroPCS’s CUP application prohibited or had the effect of

prohibiting the provision of wireless services in violation of

§ 332(c)(7) of the TCA. Id. at 1012-15. Accordingly, the district court denied both parties’ motions for summary judgment

as to this issue. Id. at 1015. Both parties were granted leave

to appeal the district court’s ruling to this Court, and both parties now seek summary judgment on all claims.

II. JURISDICTION AND STANDARD OF REVIEW

Since the district court granted both parties’ motions to certify its order for appeal, we now have jurisdiction pursuant to

28 U.S.C. § 1292(b). We review motions for summary judgment de novo. See Suzuki Motor Corp. v. Consumers Union

of United States, Inc., 330 F.3d 1127, 1131 (9th Cir.), cert.

denied, 124 S. Ct. 468 (2003); King Jewelry, Inc. v. Fed.

Express Corp., 316 F.3d 961, 963 (9th Cir. 2003). Summary

judgment should be granted when “there is no genuine issue

as to any material fact” such that “the moving party is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see

also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986); Suzuki Motor Corp., 330 F.3d at 1131. 

To prevail on a summary judgment motion, the moving

party carries the initial burden of demonstrating to the court

that no genuine issue of material fact exists. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Once the moving party has

carried that burden, it then shifts to the nonmoving party, who

must present evidence that there is indeed a genuine issue for

trial. See id. at 323-24. All disputed issues of fact are to be

resolved in favor of the nonmoving party. Anderson, 477 U.S.

at 255. 

2716 METROPCS, INC. v. SAN FRANCISCO
III. DISCUSSION

MetroPCS advances claims under several sections of the

TCA, none of which has been authoritatively construed by

this circuit.1 We address each of these claims in turn.

1The relevant provisions of the TCA read as follows: 

(7) Preservation of local zoning authority 

(A) General Authority 

Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local

government or instrumentality thereof over decisions

regarding the placement, construction, and modification of

personal wireless service facilities. 

(B) Limitations 

(i) The regulation of the placement, construction, and

modification of personal wireless service facilities by any

State or local government or instrumentality thereof— 

(I) shall not unreasonably discriminate among providers

of functionally equivalent services; and 

(II) shall not prohibit or have the effect of prohibiting

the provision of personal wireless services 

. . . . 

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or

modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a

written record. 

(iv) No State or local government or instrumentality

thereof may regulate the placement, construction, and

modification of personal wireless service facilities on the

basis of the environmental effects of radio frequency

emissions to the extent that such facilities comply with the

[Federal Communications] Commission’s regulations concerning such emissions. 

47 U.S.C. § 332(c)(7). 

METROPCS, INC. v. SAN FRANCISCO 2717
A. Decision “In Writing”

[1] Under the Telecommunications Act, “[a]ny decision by

a State or local government . . . to deny a request to place,

construct, or modify personal wireless service facilities shall

be in writing.” 47 U.S.C. § 332(c)(7)(B)(iii). In the proceedings below, the district court ruled that the Board’s decision

was adequately “in writing” under the TCA and granted the

City’s motion for summary judgment on this issue. 259 F.

Supp. 2d at 1009. MetroPCS now appeals this ruling and

moves for summary judgment. 

The TCA’s simple directive that all local zoning decisions

adverse to wireless service providers be “in writing” seems

clear enough, and the City’s five-page written decision overturning the grant of MetroPCS’s CUP certainly qualifies as

“in writing” under any colloquial or common-sense understanding of that term. (See Board Decision, ER 12, Exh. 5.)

However, while the plain meaning of the TCA’s text supports

the district court’s ruling, the circuits are split in their interpretations of the “in writing” requirement, and this Circuit has

yet to take an authoritative position on the issue. See New Par

v. City of Saginaw, 301 F.3d 390, 395 (6th Cir. 2002) (noting

the split and outlining the various interpretations); S.W. Bell

Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59 (1st Cir. 2001)

(giving a summary of the different interpretations).

At one interpretive extreme, some courts have required that

local governments explicate the reasons for their decision and

link their conclusions to specific evidence in the written

record. See, e.g., Omnipoint Communications, Inc. v. Planning & Zoning Comm’n, 83 F. Supp. 2d 306, 309 (D. Conn.

2000) (“A local zoning authority must issue a decision in

writing setting forth the reasons for the decision and linking

its conclusions to evidence in the record.”) (citations omitted);

Cellco P’ship v. Town Plan & Zoning Comm’n, 3 F. Supp. 2d

178, 184 (D. Conn. 1998) (similar standard); Ill. RSA No. 3,

Inc. v. County of Peoria, 963 F. Supp. 732, 743 (C.D. Ill.

2718 METROPCS, INC. v. SAN FRANCISCO
1997) (same). The rationale for this approach is that anything

short of this standard “ ‘places the burden on [the] Court to

wade through the record below’ ” in order to determine the

decision’s reasoning and assess its evidentiary support.

Omnipoint, 83 F. Supp. 2d at 309 (quoting Smart SMR of

N.Y., Inc. v. Zoning Comm’n, 995 F. Supp. 52, 57 (D. Conn.

1998)). 

At the other end of the spectrum lies the Fourth Circuit,

which has applied a strict textualist approach to hold that

merely stamping the word “DENIED” on a zoning permit

application is sufficient to meet the TCA’s “in writing”

requirement. AT & T Wireless PCS, Inc. v. City Council, 155

F.3d 423, 429 (4th Cir. 1998); see also AT & T Wireless PCS

v. Winston-Salem Zoning Bd. Of Adjustment, 172 F.3d 307,

312-13 (4th Cir. 1999). According to the Fourth Circuit, the

bare language of the TCA requires nothing more, and so

adhering to a more stringent standard would involve “importing additional language into the statute.” AT & T Wireless,

155 F.3d at 429. 

[2] The First and Sixth Circuits have charted a middle

course, requiring local governments to “issue a written denial

separate from the written record” which “contain[s] a sufficient explanation of the reasons for the . . . denial to allow a

reviewing court to evaluate the evidence in the record supporting those reasons.” Todd, 244 F.3d at 60; Saginaw, 301

F.3d at 395-96 (adopting the Todd standard). This approach

attempts a compromise between the demands of strict textualism and the requirements of more pragmatic policy values.

The Todd court observed that while the statutory language of

the TCA does not explicitly require detailed findings of fact

or conclusions of law, and while local zoning boards are often

staffed with laypersons ill-equipped to draft complex legal

decisions, written decisions must be robust enough to facilitate meaningful judicial review. See Todd, 244 F.3d at 59-60.

In the proceeding below, the district court ultimately chose

to apply the Todd standard and held that the Board’s written

METROPCS, INC. v. SAN FRANCISCO 2719
denial of MetroPCS’s CUP application was adequate as a

decision “in writing” under this standard. 259 F. Supp. 2d at

1009. The district court asserted that the Todd standard best

“reconciles both the statutory language and Congressional

intent of the ‘in writing’ requirement” and held that, in accordance with Todd, the City “has issued a written denial separate from the written record . . . which summarizes the

proceedings, articulates the reasons it rejected MetroPCS’[s]

application, and provides sufficient information for judicial

review in conjunction with the written record.” Id. 

We agree with the district court that the Todd standard ultimately strikes the most reasonable balance between the text

of the Act and the practical demands of meaningful judicial

review. While the bare language of the Act may not require

more than the briefest written disposition, it also does not

compel a strictly minimalist construction, and the purposes of

the “in writing” requirement would be ill-served by allowing

local zoning authorities to issue the kind of opaque, unelaborated ruling approved by the Fourth Circuit in AT & T

Wireless v. City Council. Indeed such a minimalist approach

is in direct tension with the Act’s requirement — discussed

more fully in the next section — that all local zoning decisions be supported by substantial evidence contained in a

written record. 47 U.S.C. § 332(c)(7)(B)(iii). If such an evidentiary review is to be undertaken at all, courts must at least

be able to ascertain the basis of the zoning decision at issue;

only then can they accurately assess the evidentiary support

it finds in the written record. Therefore, the zoning decision

must be sufficiently elaborated to permit this assessment.

[3] Similarly, the text of the TCA does not compel the more

demanding standard outlined in Omnipoint, 83 F. Supp. 2d at

309, and we find persuasive the Todd court’s observation that

such a standard might place an unduly heavy burden on lay

zoning boards. As a general matter, we see no reason to insist

upon a standard more exacting than is required to facilitate

meaningful judicial review. We therefore adopt the Todd stan2720 METROPCS, INC. v. SAN FRANCISCO
dard and hold that the TCA requires local zoning authorities

to issue a written decision separate from the written record

which contains sufficient explanation of the reasons for the

decision to allow a reviewing court to evaluate the evidence

in the record supporting those reasons. 

[4] As to the merits of the case at bar, we are persuaded that

the district court did not err in granting the City’s motion for

summary judgment as to this claim under the Todd standard.

As the district court correctly noted, the Board of Supervisors

issued a five-page written decision, separate from the record,

which summarized the facts of the dispute, recounted the proceedings it conducted, articulated its reasons for overturning

the Commission’s grant of the CUP and explained the evidentiary basis for its ruling. Whatever else might be said about

the decision or its reasoning, it does contain sufficient explanation to enable judicial evaluation of the evidentiary support

for its rationale. In fact MetroPCS itself devotes many pages

of its brief to discussing and critiquing the decision’s reasoning and evidentiary support.2

[5] In light of all these considerations, we affirm the district

court’s ruling that the Board’s decision was properly “in writing” under § 332(c)(7)(B)(iii) of the TCA. 

2

Incidentally, we believe that the Board’s decision would arguably pass

muster under any of the aforementioned legal standards. It easily passes

the Fourth Circuit’s test, under which merely stamping the application

“DENIED” is sufficient. AT & T Wireless, 155 F.3d at 429. And with

regard to the more stringent test outlined in Omnipoint and its ilk, the

Board’s decision “[sets] forth the reasons for the decision” and does at

least a passable job of “linking its conclusions to evidence in the record.”

Omnipoint, 83 F. Supp. 2d at 309. While the Board’s decision is phrased

in somewhat general terms, it does make reference to “the record,”

recounts the testimony offered during its hearing on the issue, articulates

its findings and discusses its objections to many of the specific findings

of the Planning Commission. Thus although the decision does not offer

formal findings of fact and conclusions of law as a full-blown judicial

decision might, it is not clear that the Omnipoint standard demands such

rigor. 

METROPCS, INC. v. SAN FRANCISCO 2721
B. Substantial Evidence

[6] In addition to requiring that all local zoning decisions

be “in writing,” the TCA also mandates that these decisions

be “supported by substantial evidence contained in a written

record.” 47 U.S.C. § 332(c)(7)(B)(iii). In the proceedings

below, the district court granted the City’s motion for summary judgment on this issue, ruling that the Board’s determination that the proposed facility is not necessary for the

community was supported by substantial evidence. 259 F.

Supp. 2d at 1011.

In stark contrast to virtually every other aspect of this case,

there appears to be universal agreement among the circuits as

to the substantive content of this requirement. While the term

“substantial evidence” is not statutorily defined in the Act, the

legislative history of the TCA explicitly states, and courts

have accordingly held, that this language is meant to trigger

“the traditional standard used for judicial review of agency

decisions.” H.R. Conf. Rep. No. 104-458, at 208 (1996); see

also Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490,

494 (2d Cir. 1999) (holding that “substantial evidence”

implies this traditional standard); Preferred Sites, LLC v.

Troup County, 296 F.3d 1210, 1218 (11th Cir. 2002) (same).

[7] However, the substantial evidence inquiry does not

require incorporation of the substantive federal standards

imposed by the TCA, but instead requires a determination

whether the zoning decision at issue is supported by substantial evidence in the context of applicable state and local law.

As our sister circuits have recognized, the TCA “does not

affect or encroach upon the substantive standards to be

applied under established principles of state and local law.”

Oyster Bay, 166 F.3d at 494 (internal quotation marks omitted) (emphasis added). “ ‘Substantial evidence’ review under

the TCA does not create a substantive federal limitation upon

local land use regulatory power . . . .” Todd, 244 F.3d at 58

(citations omitted); see also Voicestream Minneapolis, Inc. v.

2722 METROPCS, INC. v. SAN FRANCISCO
St. Croix County, 342 F.3d 818, 830 (7th Cir. 2003) (same

rule) (citing Todd). In other words, we must take applicable

state and local regulations as we find them and evaluate the

City decision’s evidentiary support (or lack thereof) relative

to those regulations. If the decision fails that test it, of course,

is invalid even before the application of the TCA’s federal

standards.

This approach serves several purposes. First, it enables us

to avoid unnecessarily reaching the federal questions of

whether a zoning decision violates the substantive provisions

of the TCA. If a zoning board’s decision, reached under its

own rules, is not supported by substantial evidence, then we

need not consider the application of the anti-prohibition or

anti-discrimination prongs of the statute. Second, local regulations standing alone may offer little insight into whether they

violate the substantive requirements of the TCA. Zoning rules

— such as those that allow local authorities to reject an application based on “necessity” — may not suggest on their face

that they will lead to discrimination between providers or

have the effect of prohibiting wireless services. Thus, in most

cases, only when a locality applies the regulation to a particular permit application and reaches a decision — which it supports with substantial evidence — can a court determine

whether the TCA has been violated. 

The dissent disagrees with this approach, arguing that any

zoning regulation — or application of such a regulation —

based on considerations of community “necessity” by its

terms discriminates against new providers, cannot be squared

with the TCA’s anti-discrimination provision, 47 U.S.C.

§ 332(c)(7)(B)(i)(II), and is therefore, ipso facto, not supported by substantial evidence. Yet such an interpretation may

thwart congressional intent concerning the independence

accorded local zoning authorities under the TCA. As the dissent recognizes, the only direct substantive restriction the Act

places on local zoning authorities is the proscription of decisions based on concerns over radio frequency emissions conMETROPCS, INC. v. SAN FRANCISCO 2723
tained in § 332(c)(7)(B)(iv). (See discussion of this provision,

infra in Section III-F.) Had Congress desired to proscribe zoning decisions based on community necessity — or, for that

matter, any other disfavored rationale — we are confident that

it could have done so. Yet as the foregoing legal precedents

and legislative history demonstrate, Congress instead intended

that the traditional substantive prerogatives of local zoning

authorities not be disturbed. 

Perhaps more fundamentally, the dissent’s conflation of the

TCA’s substantive anti-discrimination provision, 47 U.S.C.

§ 332(c)(7)(B)(i)(II), with its procedural “substantial evidence” requirement threatens to render the “substantial evidence” provision superfluous. Rather than review a zoning

decision for basic evidentiary support, the dissent would

require, as a threshold matter, that we review the decision for

discriminatory rationale. But regardless of the rationale

employed, zoning decisions must still satisfy the TCA’s antidiscrimination provision, id., which prohibits actual discrimination. If similarly situated providers are not treated differently in fact, there is little reason to obviate a zoning decision

based purely on an impermissible “necessity” rationale. 

[8] Having thus delimited the scope of our substantial evidence inquiry, we may now turn to the merits of the question

before us. The most authoritative and oft-cited elaboration of

the TCA’s substantial evidence standard comes from the Second Circuit in Oyster Bay, where the court explained that

“substantial evidence” implies “less than a preponderance, but

more than a scintilla of evidence. ‘It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” 166 F.3d at 494 (quoting Universal

Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)). This formulation has been adopted by every circuit that has had occasion to consider the issue. See, e.g., St. Croix County, 342

F.3d at 830 (7th Cir. 2003); United States Cellular Tel. of

Greater Tulsa, L.L.C. v. City of Broken Arrow, 340 F.3d

1122, 1133 (10th Cir. 2003); Troup County, 296 F.3d at 1218

2724 METROPCS, INC. v. SAN FRANCISCO
(11th Cir.); Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 627-28 (1st Cir. 2002); 360o

 Communications Co. of Charlottesville v. Bd. of Supervisors, 211 F.3d 79,

83 (4th Cir. 2000). 

Review under this standard is essentially “deferential,”

such that courts may “neither engage in [their] own factfinding nor supplant the Town Board’s reasonable determinations.” Oyster Bay, 166 F.3d at 494. In applying this standard

to the facts of a given case, the written record must be viewed

in its entirety, including all evidence supporting both parties,

and “local and state zoning laws govern the weight to be

given the evidence.” Id. As mentioned earlier, these baseline

rules are solidly established, and the parties here do not dispute them. 

The upshot is simple: this Court may not overturn the

Board’s decision on “substantial evidence” grounds if that

decision is authorized by applicable local regulations and supported by a reasonable amount of evidence (i.e., more than a

“scintilla” but not necessarily a preponderance). In the proceeding below, the district court correctly identified the prevailing legal standard discussed above, 259 F. Supp. 2d at

1009, and granted the City’s motion for summary judgment

on this issue, ruling that the City’s determination that the

Richmond District community did not need the MetroPCS

antenna was (1) authorized by local zoning regulations and

(2) supported by substantial evidence, id. at 1010-11. This ruling was legally correct. 

[9] First, the San Francisco Planning Code explicitly authorizes the consideration of community need in evaluating conditional use permit applications. San Francisco Planning Code

§ 303(c)(1) (directing the City Planning Commission to consider whether “the proposed use . . . is necessary or desirable

for, and compatible with, the neighborhood or the community”) (emphasis added). Thus, the necessity-based portion of

the Board’s decision was clearly authorized by local zoning

METROPCS, INC. v. SAN FRANCISCO 2725
regulations. Even MetroPCS acknowledges this much.

Accordingly, the only remaining issue concerns whether the

Board’s “necessity” conclusion was supported by substantial

evidence.3 A perusal of the record demonstrates that it was.

The Board’s inquiry into this issue was not a model of thoroughness or rigor,4

 but the record does clearly establish that

the Richmond District is amply served by at least five other

major wireless service providers and thus did not “need” the

proposed Geary facility. One of MetroPCS’s own representatives testified before the Board that “every carrier in San

Francisco has coverage along Geary [Boulevard],” and reiterated that “every carrier has an antenna in this neighborhood.”

Another MetroPCS representative testified that “we’ve got

Verizon, Sprint, AT & T, Singular [sic], Nextel, all in the very

same vicinity [of the Geary site],” adding later that Sprint and

Verizon “have great coverage. They have an excellent foothold in the [Geary] area.” Indeed MetroPCS argued before the

Board that it needed a facility at the Geary site precisely

because it had to compete with other providers who had coverage in the area. 

3MetroPCS cites Nextel Communications of Mid-Atlantic, Inc. v. Town

of Wayland, 231 F. Supp. 2d 396, 406-07 (D. Mass. 2002), for the proposition that local zoning regulations are not protected to the extent that they

violate the TCA. This assertion reflects a misreading of Wayland. The passage cited by MetroPCS actually speaks to the anti-prohibition prong of

the TCA. While the TCA is apparently agnostic as to the substantive content of local zoning ordinances, zoning decisions may be invalidated if

they unreasonably discriminate among providers or prohibit the provision

of wireless services. See discussion of the prohibition and discrimination

issues, infra. 

4Particularly alarming is the general lack of reference to the City Planning Commission’s decision to grant MetroPCS the CUP initially. At the

least, one certainly wonders why the Planning Commission concluded,

contrary to the Board’s decision, that the MetroPCS site was “necessary

and desirable” for the community. Unfortunately the Board did not shed

any light on this issue, and, since at least one of its findings is supported

by substantial evidence, the TCA provides no basis for remedying such

procedural shortcomings. As discussed above, congressional intent to preserve local zoning authority — however constituted — is clear. 

2726 METROPCS, INC. v. SAN FRANCISCO
These statements by MetroPCS were buttressed by testimony and numerous written petitions from local residents,

including Robert Blum (the resident actually challenging the

CUP grant), reporting that the Richmond District already

enjoyed excellent wireless coverage. The record also contains

a site map showing the locations of SprintPCS facilities in the

Richmond District, including one antenna installation just 0.2

miles from the proposed Geary site. Taken in its totality, this

evidence, including unequivocal statements by MetroPCS

itself, constitutes at least a showing that “a reasonable mind

might accept” as adequate. The “substantial evidence” provision of the TCA requires nothing more.

[10] In briefing this issue, both parties spend considerable

time discussing the evidence supporting the Board’s findings

on neighborhood character and the aesthetic impact of the

proposed facility. MetroPCS in particular spends considerable

time arguing that residents’ aesthetic concerns are speculative

or unsubstantiated. This may be true. Yet, since the Board’s

finding on community necessity was authorized by local regulations and supported by substantial evidence, it is unnecessary to consider the evidence supporting other potential

grounds for the City’s decision. See e.g., Oyster Bay, 166 F.3d

at 495 (stating that the court must “determine whether the

Board possessed substantial evidence on one or both of [its

permissible] grounds” for a zoning permit denial). The district

court was correct in taking this analytical approach as well,

relegating these ancillary concerns to a footnote. 259 F. Supp.

2d at 1011 n.6. 

[11] As the district court below identified the correct prevailing legal standard and applied it properly, we affirm the

district court’s ruling that the Board’s decision was supported

by “substantial evidence” as required by the TCA.

C. Discrimination Claim

[12] In addition to its more concrete procedural requirements, the TCA also mandates that “[t]he regulation of the

METROPCS, INC. v. SAN FRANCISCO 2727
placement, construction, and modification of personal wireless service facilities by any State or local government or

instrumentality thereof — (I) shall not unreasonably discriminate among providers of functionally equivalent services.” 47

U.S.C. § 332(c)(7)(B)(i)(I) (emphasis added). As the bulk of

the cases on this issue have recognized, by using this language “the Act explicitly contemplates that some discrimination ‘among providers of functionally equivalent services’ is

allowed. Any discrimination need only be reasonable.” AT &

T Wireless, 155 F.3d at 427; see also Omnipoint Communications Enters., L.P. v. Zoning Hearing Bd., 331 F.3d 386, 395

(3d Cir.) (citing AT & T Wireless, 155 F.3d at 427), cert.

denied, 124 S. Ct. 1070 (2003); Nextel W. Corp. v. Unity

Township, 282 F.3d 257, 267 (3d Cir. 2002) (same); Sprint

Spectrum, L.P. v. Willoth, 176 F.3d 630, 638 (2d Cir. 1999)

(same). 

More specifically, most courts have held that discrimination based on “traditional bases of zoning regulation” such as

“preserving the character of the neighborhood and avoiding

aesthetic blight” are reasonable and thus permissible. AT & T

Wireless, 155 F.3d at 427; see also Willoth, 176 F.3d at 639

(same) (citing AT & T Wireless). Aside from reflecting the

plain meaning of the TCA’s text, this interpretation is also

supported by the Act’s legislative history. The House Conference Report on the TCA explained the Act’s nondiscrimination clause as follows: 

The conferees also intend that the phrase “unreasonably discriminate among providers of functionally

equivalent services” will provide localities with the

flexibility to treat facilities that create different

visual, aesthetic, or safety concerns differently to the

extent permitted under generally applicable zoning

requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government

grants a permit in a commercial district, it must also

2728 METROPCS, INC. v. SAN FRANCISCO
grant a permit for a competitor’s 50-foot tower in a

residential district.

H.R. Conf. Rep. No. 104-458, at 208 (1996) (emphasis added).5

In keeping with these baseline principles, almost all federal

courts considering such cases have ruled that providers alleging unreasonable discrimination must show that they have

been treated differently from other providers whose facilities

are “similarly situated” in terms of the “structure, placement

or cumulative impact” as the facilities in question. APT Pittsburgh Ltd. P’ship v. Penn Township Butler County, 196 F.3d

469, 480 n.8 (3d Cir. 1999) (internal quotation marks omitted)

(emphasis added); Willoth, 176 F.3d at 643 (“[I]t is not unreasonably discriminatory to deny a subsequent application for a

cell site that is substantially more intrusive than existing cell

sites by virtue of its structure, placement or cumulative

impact.”); see also Omnipoint, 331 F.3d at 395 (“Permitting

the erection of a communications tower in a business district

does not compel the [zoning board] to permit a similar tower

at a later date in a residential district.”); Unity Township, 282

F.3d at 267 (discrimination claim “ ‘require[s] a showing that

the other provider is similarly situated’ ”) (quoting Penn

Township, 196 F.3d at 480 n.8). In fact, the sole district court

case from the Ninth Circuit on this issue holds that a mere

increase in the number of wireless antennas in a given area

over time can justify differential treatment of providers. Airtouch Cellular v. City of El Cajon, 83 F. Supp. 2d 1158, 1166

(S.D. Cal. 2000). 

5

Indeed one of the primary purposes of section 332(c)(7) is to protect

the legitimate traditional zoning prerogatives of local governments. This

section of the Act is actually entitled “Preservation of local zoning authority” and states as its baseline principle that, “[e]xcept as provided in this

paragraph, nothing in this chapter shall limit or affect the authority of a

State or local government . . . over decisions regarding the placement, construction, and modification of personal wireless service facilities.” 47

U.S.C. § 332(c)(7)(A). 

METROPCS, INC. v. SAN FRANCISCO 2729
In ruling that the City’s decision here did not unreasonably

discriminate against MetroPCS, the district court employed a

somewhat confusing and contradictory analysis. The court

first stated that, in order to prevail, MetroPCS must demonstrate that the City treated it differently from one of its competitors for a “functionally identical request.” 259 F. Supp. 2d

at 1012 (emphasis added). The district court cites Sprint Spectrum, 244 F. Supp. 2d at 117, for this proposition, though the

court’s formulation appears to reflect a misreading of that

case. The court in Sprint Spectrum actually applied the

broader legal principle that “a local board may reasonably

consider the location of the cell tower when deciding . . .

whether to approve the application for construction.” Id. 

Later in its opinion, the district court stated that MetroPCS

must demonstrate that “other providers have been permitted

to build similar structures on similar sites while it has been

denied.” 259 F. Supp. 2d at 1012 (emphasis added). As discussed above, given that the wireless providers in question

provide “functionally equivalent services” (which is undisputed in this case), “similarly situated” is the prevailing legal

standard on the discrimination issue. The district court then

proceeded to find that the facilities of other service providers

in the Richmond District are “differently situated from

MetroPCS because they have sought to place their antenna

structures at different locations within the district.” Id. Thus

while it is not clear whether the decision below ultimately

turned on the prevailing “similarly situated” analysis (similar

structures on similar sites) or the district court’s own “functionally identical request” standard, it appears that the court

would have ruled for the City under either test. This ruling

was error. 

First, the district court frames the relevant legal inquiry too

narrowly. For the policy reasons discussed above, the “similarly situated” standard seems to strike an appropriate balance

between Congress’s twin goals of promoting robust competition and preserving local zoning authority. The district court’s

2730 METROPCS, INC. v. SAN FRANCISCO
formulation of the discrimination inquiry, under which localities may deny use permits any time the relevant antenna structures are at “different locations,” id., appears unduly narrow.

Unless competing providers seek to place virtually identical

antennas at the very same location or on the same specific

structure, no wireless service provider could ever carry its

burden to show discrimination under this test. Such a standard

would give localities far too much leeway in rejecting functionally similar requests by competing providers and would

thwart the competition that the TCA sought to facilitate. 

[13] As for the district court’s final determination that the

City did not, as a matter of law, unreasonably discriminate

against MetroPCS, this too was error. The factual record is

equivocal on the discrimination issue. While the Board’s decision appears to have been authorized by the City Planning

Code, it is not entirely clear whether the proposed MetroPCS

site is “similarly situated” to other approved facilities in the

Richmond District. The record shows that there is a competing SprintPCS wireless facility, also on Geary Boulevard, just

two blocks (~0.2 miles) from the rejected MetroPCS site.

MetroPCS also alleges that, shortly after it denied MetroPCS’s application for a CUP at the Geary site, the Board

approved the installation of a Cingular Wireless facility on a

rooftop in the same neighborhood. These facts at least suggest

a real possibility of discrimination between similar sites. 

While the Board maintains that the other existing wireless

facilities in the Richmond District were approved because

they were placed at a more ideal location, see 259 F. Supp.

2d at 1012, the record contains no systematic comparison of

the sites in question. Similarly, while the record also contains

photo simulations of the proposed MetroPCS site, (ER 31

Exh. 1), there are no similar photographs of competing facilities in the area. In short, 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 in

METROPCS, INC. v. SAN FRANCISCO 2731
terms of “structure, placement or cumulative impact.” See

again Penn Township, 196 F.3d at 480 n.8 (internal quotation

marks omitted). 

[14] Given the foregoing, MetroPCS has presented sufficient evidence to create an issue of fact as to the discrimination claim. Since there is no conclusive evidence as to how

MetroPCS’s proposed facility compares to the existing sites

of its competitors in terms of “structure, placement or cumulative impact,” substantial questions of fact remain as to

whether the Board of Supervisors unreasonably discriminated

against MetroPCS, and thus neither party is entitled to judgment as a matter of law.6

 We accordingly reverse the district

court’s grant of summary judgment in favor of the City on

6

In its brief, MetroPCS asserts that the City’s community necessity

rationale “constitutes unreasonable discrimination against new providers

and is antithetical to the pro-competitive goals of Section 332(c)(7)(B).”

In support of this argument, MetroPCS relies on Western PCS II Corp. v.

Extraterritorial Zoning Authority, 957 F. Supp. 1230, 1237-38 (D.N.M.

1997), and Sprint Spectrum, L.P v. Town of Easton, 982 F. Supp. 47, 51

(D. Mass. 1997), both of which ruled that local governments may not deny

wireless providers permission to construct facilities merely because they

believe that existing wireless service is adequate. However, as the district

court notes in its opinion below, 259 F. Supp. 2d at 1012 n.8, both of these

decisions turned on the local government’s disregard of relevant evidence

and improper application of relevant zoning laws. And while the City does

little to directly address MetroPCS’s broader argument that necessitybased zoning decisions are inherently discriminatory against new market

entrants, such an argument is of limited persuasiveness. 

As discussed above, the Act specifically preserves traditionally local

zoning authority over siting decisions, and it has been consistently held

that the TCA does not intrude upon the substantive content of local zoning

rules. Oyster Bay, 166 F.3d at 494. In other words, far from prohibiting

zoning decisions based on redundancy or community “necessity,” the

TCA itself appears to be totally agnostic on this issue. Moreover, a purely

aesthetic determination that a certain neighborhood is blighted with too

many wireless antennas — which is specifically permitted in the prevailing case law and anticipated in the legislative history of the TCA — may

similarly disadvantage new market entrants who wish to add new facilities

in the neighborhood. 

2732 METROPCS, INC. v. SAN FRANCISCO
this issue and 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. 

D. Prohibition Claim 

[15] Section 332 of the TCA provides that “[t]he regulation

of the placement, construction, and modification of personal

wireless service facilities by any State or local government or

any instrumentality thereof — (II) shall not prohibit or have

the effect of prohibiting the provision of personal wireless

services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). MetroPCS alleges

that, in denying its application for a CUP, the City has violated this provision by both imposing a “general ban” on new

service providers in the Richmond District and effectively

prohibiting the provision of wireless services by preventing

MetroPCS from filling a “significant gap” in its coverage. 

In the proceedings below, the district court held that the

City’s decision did not amount to a “general ban” on wireless

services, but that material questions of fact remain as to

As for the case at bar, the claim of discrimination against new providers

also rings a bit hollow coming from MetroPCS, since the record shows

that it has been allowed to construct some 30 sites in the city of San Francisco, including 18 facilities under discretionary CUPs. While this does

not necessarily establish that MetroPCS has been allowed to realize seamless coverage in the city, it certainly does refute any claim of discrimination against new providers as such. 

More to the point, Congress has already considered the competing interests of local zoning authorities and wireless providers (both new and old),

and has constructed a statutory scheme to accommodate both. As will be

discussed more fully below, while the TCA is agnostic as to the substantive content of local regulations, localities are nonetheless constrained by

section 332(c)(7)(B)(i)(I) and (II) of the TCA, which preclude them from

unreasonably discriminating against competing providers or (effectively)

prohibiting the provision of wireless services. See discussion infra at Section III, Part E. 

METROPCS, INC. v. SAN FRANCISCO 2733
whether the denial of MetroPCS’s CUP application perpetuates a “significant gap” in MetroPCS’s coverage. 259 F. Supp.

2d at 1015. We find the district court’s reasoning persuasive,

and we affirm all aspects of its holding as to this claim.

1. General Ban

A city-wide general ban on wireless services would certainly constitute an impermissible prohibition of wireless services under the TCA. In fact, this is the only circumstance

under which the Fourth Circuit will find an impermissible

prohibition under the statute. See AT & T Wireless, 155 F.3d

at 428 (holding that only “blanket prohibitions” and “general

bans or policies” affecting all wireless providers count as

effective prohibition of wireless services under the TCA).

Under this rule, which is based on a strict plain meaning analysis, individual zoning decisions or persistent coverage gaps

can never constitute a prohibition under the statute — courts

must ask only whether local governments have (effectively)

banned wireless services altogether. Id. The City asks us to

adopt the Fourth Circuit’s interpretation as well, noting that

the House Conference Committee’s Report on the TCA seems

to anticipate a narrow, bare-bones approach: “It is the intent

of this section that bans or policies that have the effect of banning personal wireless services or facilities not be allowed

and that decisions be made on a case-by-case basis.” H.R.

Conf. Rep. No. 104-458, at 208 (1996). 

However, for a variety of reasons, we decline to adopt the

Fourth Circuit rule on this point. The language of the TCA,

while sparse, does not dictate such a narrow interpretation

even under a plain meaning approach. As the First Circuit has

observed, given the current structure of the wireless services

market, “[t]he fact that some carrier provides some service to

some consumers does not in itself mean that the town has not

effectively prohibited services to other consumers.” Second

Generation Props., 313 F.3d at 634. Additionally the Fourth

Circuit’s interpretation, by permitting all but the most restric2734 METROPCS, INC. v. SAN FRANCISCO
tive local zoning policies, could actually thwart Congress’s

twin goals of encouraging competition in the wireless services

industry and facilitating efficient use of bandwidth. The

touchstone of our prohibition analysis is therefore not limited

to blanket bans or general policies prohibiting wireless services. The TCA framework requires a more discriminating

inquiry. (See our discussion of the “Significant Gap” analysis,

infra.)

Turning briefly to the merits, the record offers no support

for MetroPCS’s assertion that the City has imposed a “general

ban” on wireless services, against new providers or anyone

else. Aside from the fact that it would be extremely dubious

to infer a general ban from a single CUP denial, the record

reveals that the City has been receptive to wireless providers

in general and MetroPCS in particular. It is undisputed that

the City has authorized the installation of some 2,000 antennas at about 450 sites around the city, including 30 MetroPCS

sites. This undercuts any assertion that the City has placed a

general ban on new market entrants. The district court made

virtually identical observations in its own finding that no general ban exists, 259 F. Supp. 2d at 1013, and we uphold this

ruling as entirely correct. 

2. Service Gap

Several circuits have held that, even in the absence of a

“general ban” on wireless services, a locality can run afoul of

the TCA’s “effective prohibition” clause if it prevents a wireless provider from closing a “significant gap” in service coverage. This inquiry generally involves a two-pronged analysis

requiring (1) the showing of a “significant gap” in service

coverage and (2) some inquiry into the feasibility of alternative facilities or site locations. Currently there is a clear circuit

split as to what constitutes a “significant gap” in coverage,

and the Ninth Circuit has yet to rule on the issue.7

7The high stakes involved for both wireless service providers and local

governments are reflected in the fact that most of the Amicus briefs filed

in this case focus on this issue. 

METROPCS, INC. v. SAN FRANCISCO 2735
(a) Definition of “Significant Gap”

The test employed by the Second and Third Circuits holds

that a “significant gap” in service exists only if no provider

is able to serve the “gap” area in question. See Omnipoint,

331 F.3d at 398; Unity Township, 282 F.3d at 265; Penn

Township, 196 F.3d at 478-80; Willoth, 176 F.3d at 643. One

district court in the Ninth Circuit has also adopted this test. El

Cajon, 83 F. Supp. 2d at 1167. This test is sometimes referred

to as the “one provider” rule since, if any single provider

offers coverage in a given area, localities may preclude other

providers from entering the area (as long as the preclusion is

a valid, nondiscriminatory zoning decision that satisfies the

other provisions of the TCA).

This rule has been touted as proceeding from the consumer’s perspective rather than the individual service provider’s

perspective, which the Third Circuit argues is more in keeping

with the regulatory goals of the TCA — as long as some provider offers service in the area, consumers will be adequately

served and the TCA’s goal of establishing nationwide wireless service will be achieved. See Omnipoint, 331 F.3d at 397-

98; Unity Township, 282 F.3d at 265. Under this view, the

TCA protects only the individual user’s ability to receive service from one provider or another; it does not protect each

service provider’s ability to maintain full coverage within a

given market. Omnipoint, 331 F.3d at 397-98; Unity Township, 282 F.3d at 265; cf. Willoth, 176 F.3d at 641-43.

[16] The First Circuit has recently rejected the “one provider” approach and held that a local regulation creates a “significant gap” in service (and thus effectively prohibits wireless

services) if the provider in question is prevented from filling

a significant gap in its own service network. See Second Generation Props., 313 F.3d at 631-33. This approach formally

takes the perspective of the individual service provider in

assessing coverage gaps, but, as the Second Generation Properties court persuasively explains, this approach actually bet2736 METROPCS, INC. v. SAN FRANCISCO
ter serves both individual consumers and the policy goals of

the TCA.8 The Second Generation Properties court notes that

the TCA “aims to secure lower prices and better service for

consumers by opening all telecommunications markets to

competition.” Id. at 631 (citing H.R. Conf. Rep. No. 104-458,

at 113 (1996)). The court then warns against the dysfunctional

implications of the Second and Third Circuits’ “one provider

rule”:

A flat “any service equals no effective prohibition” rule would say that a town could refuse permits

to build the towers necessary to solve any number of

different coverage problems . . . . Such a rule would

be highly problematic because it does not further the

interests of the individual consumer. To use an

example from this case, it is of little comfort to the

customer who uses AT & T Wireless (or Voicestream, Verizon, Sprint, or Nextel) who cannot get

service along the significant geographic gap which

may exist along Route 128 that a Cingular Wireless

customer does get some service in that gap . . . . The

result [of such a rule] would be a crazy patchwork

quilt of intermittent coverage. That quilt might have

the effect of driving the industry toward a single carrier. When Congress enacted legislation to promote

the construction of a nationwide cellular network,

such a consequence was not, we think, the intended

result. 

Id. at 633 (footnote omitted). In short, the First Circuit’s multiple provider rule better facilitates the robust competition

8

It should be noted that there is a difference between the interests of

local residents — who may prefer fewer providers to limit the number of

antennas in the area — and those of wireless service subscribers who may

be frustrated that their particular provider cannot offer coverage in a given

neighborhood. Both of these may be categorized as the “consumer perspective,” though they lead to different results. Our use of the term “consumer” in the discussion here refers to wireless service subscribers. 

METROPCS, INC. v. SAN FRANCISCO 2737
which Congress sought to encourage with the TCA, and it

better accommodates the current state of the wireless services

market. The district court also found these arguments persuasive, since it formally adopted the First Circuit rule in its decision below. 259 F. Supp. 2d at 1013-14. 

For its part, MetroPCS does not object to the district court’s

adoption of the First Circuit “multiple provider rule” (in fact

MetroPCS and its Amici argue strenuously in favor of the

First Circuit’s approach), though it argues that the City’s zoning “criteria,” which allow for CUP denials based on findings

that a given facility is “not necessary” for the community, are

“impossible for any non-incumbent carrier to meet” and thus

constitute an effective prohibition of wireless services. Once

again, the large number of permits already granted by the City

— to providers new and old — belies this assertion. 

Additionally, we emphasize that MetroPCS’s concerns

regarding zoning decisions based on “necessity” can be

accommodated by the First Circuit’s version of the significant

gap test. Under this rule, zoning decisions explicitly based on

redundancy of service are not per se invalid, but they are subject to the crucial limitations that (1) they cannot discriminate

between similarly situated facilities and (2) they cannot result

in a significant gap in service for the provider in question. As

will be discussed shortly, the First Circuit’s interpretation also

fully meets the preemption and supremacy arguments

advanced by MetroPCS.9

[17] Having considered both the avowed policy goals of the

TCA and the practical implications of the various constructional options, we elect to follow the district court’s lead and

formally adopt the First Circuit’s rule that a significant gap in

service (and thus an effective prohibition of service) exists

whenever a provider is prevented from filling a significant

9

See discussion of MetroPCS’s supremacy and preemption arguments,

infra at Section III, Part E. 

2738 METROPCS, INC. v. SAN FRANCISCO
gap in its own service coverage. With the correct legal standard thus clarified, we now turn to the merits of MetroPCS’s

prohibition claim.

In applying the First Circuit’s provider-focused notion of

“significant gap,” the district court denied both parties summary judgment, holding that significant questions of fact still

exist as to whether the Board’s decision actually perpetuates

a significant gap in MetroPCS’s coverage. This conclusion is

amply supported by the existing record and, therefore, we

affirm the district court’s ruling on this issue. Both parties

confidently assert that the current record unequivocally supports their respective positions. But to the contrary, the record

is replete with contradictory allegations as to MetroPCS’s

need for the Geary site. Compare Statements of Suki McCoy,

SER at 223-36 (stating that MetroPCS has adequate coverage

in the Richmond District); Statements of Martin Signithaler,

SER at 134-36 (stating that the Geary site would not improve

MetroPCS’s effective coverage); MetroPCS Marketing Materials, SER 225, 234 (advertising that MetroPCS has full coverage around the Geary site), with Statements of MetroPCS

Technological Expert, SER at 200-02 (stating that MetroPCS

coverage is not adequate without the Geary site); Declaration

of Lisa Nahmanson, ER 32 (stating that MetroPCS coverage

is insufficient without the Geary site); Testimony of Deborah

Stein, SER 191-200(same); Declaration of John Schwartz, ER

49 (challenging basis of City’s contention that existing

MetroPCS service is adequate). 

In urging us to grant it summary judgment on this issue, the

City cites a bevy of cases that, collectively, are meant to demonstrate that “[t]he TCA does not assure every wireless carrier

a right to seamless coverage in every area it serves,” and that

the inability to cover a “a few blocks in a large city” is, as a

matter of law, not a “significant gap.” While we recognize

that the TCA does not guarantee wireless service providers

coverage free of small “dead spots,”

10 the existing case law

10The district court correctly notes that the relevant service gap must be

truly “significant” and “not merely individual ‘dead spots’ within a greater

METROPCS, INC. v. SAN FRANCISCO 2739
amply demonstrates that “significant gap” determinations are

extremely fact-specific inquiries that defy any bright-line

legal rule. Moreover, the City’s assertion as to the size of

MetroPCS’s alleged service gap merely assumes the very fact

in issue here — the existence and geographic proportions of

a gap in MetroPCS’s coverage. 

[18] Given the conflicting contents of the record, there is

simply no basis for granting either party summary judgment

on this issue. We affirm the district court’s ruling to that

effect. 

(b) Least Intrusive Means

[19] Under all existing versions of the “significant gap”

test, once a wireless service provider has demonstrated that

the requisite significant gap in coverage exists, it must then

make some showing as to the intrusiveness or necessity of its

proposed means of closing that gap. Here again, the circuits

are split as to the required showing. 

The Second and Third Circuits require the provider to show

that “the manner in which it proposes to fill the significant

gap in service is the least intrusive on the values that the

denial sought to serve.” Penn Township, 196 F.3d at 480

(emphasis added); see also Omnipoint, 331 F.3d at 398; Unity

Township, 282 F.3d at 266; Willoth, 176 F.3d at 643. The

First and Seventh Circuits, by contrast, require a showing that

there are “no alternative sites which would solve the problem.” Second Generation Props., 313 F.3d at 635; see also St.

Croix County, 342 F.3d at 834-35 (adopting the First Circuit

service area.” 259 F. Supp. 2d at 1014. Courts applying both versions of

the “significant gap” test appear to agree on this proposition. See e.g., Second Generation Props., 313 F.3d at 631; 360o

 Communications Co., 211

F.3d at 87; Willoth, 176 F.3d at 643-44. 

2740 METROPCS, INC. v. SAN FRANCISCO
test and requiring providers to demonstrate that there are no

“viable alternatives”) (citing Second Generation Properties).11

After concluding that material issues of fact remain as to

the presence (or absence) of a significant gap in MetroPCS’s

coverage, the district court attempted to reconcile competing

interpretations of the intrusiveness inquiry by creating its own

“fact-based test that requires the provider to demonstrate that

its proposed solution is the most acceptable option for the

community in question.” 259 F. Supp. 2d at 1015 (emphasis

added). 

Since there is no controlling legal authority on the issue,

our choice of rule must ultimately come down to policy considerations. The district court’s “most acceptable option”

rubric seems a hopelessly subjective standard, and one wonders how a proposed site could ever be proven “the most

acceptable” if a zoning proposal with respect to it had already

been denied by local authorities. On the other hand, the First

and Seventh Circuit requirement that a provider demonstrate

that its proposed facility is the only viable option seems too

exacting. As the case at bar demonstrates, there may be several viable means of closing a major service gap, (see

MetroPCS Alternative Site Analysis, SER 26-35), and in such

a situation, this “only viable option” rule would either preclude the construction of any facility (since no single site is

the “only viable” alternative) or require providers to endure

11The district court also notes that, in the Fourth Circuit, “ ‘[a] community could rationally reject the least intrusive proposal in favor of a more

intrusive proposal that provides better service or that better promotes commercial goals of the community.’ ” 259 F. Supp. 2d at 1014 (quoting 360o

Communications Co., 211 F.3d at 87). This rule is inapposite to the case

at bar since the Fourth Circuit, as discussed above, does not recognize

either version of the “significant gap” test. Instead, it holds that the TCA

prohibits only general or “blanket” bans on wireless services. Under such

a rule, denials of individual siting requests can never run afoul of the

TCA, and so the relative intrusiveness of different siting proposals is irrelevant. 

METROPCS, INC. v. SAN FRANCISCO 2741
repeated denials by local authorities until only one feasible

alternative remained. This seems a poor use of time and

resources for both providers and local governments alike. 

[20] The Second and Third Circuit “least intrusive” standard, by contrast, allows for a meaningful comparison of

alternative sites before the siting application process is needlessly repeated. It also gives providers an incentive to choose

the least intrusive site in their first siting applications, and it

promises to ultimately identify the best solution for the community, not merely the last one remaining after a series of

application denials. 

[21] For these reasons, we now adopt the “least intrusive

means” standard and instruct the district court to apply this

rule as necessary in its consideration of the prohibition issue

on remand. 

E. Preemption Claim

One additional note is in order that bears, albeit indirectly,

on MetroPCS’s discrimination and prohibition claims.

MetroPCS vigorously asserts, as separate claims independent

of the specific provisions of the TCA, that the Board’s denial

of its CUP based on an appraisal of community “necessity”

violates the FCC’s exclusive licensing authority over wireless

providers and is preempted by the TCA’s statutory scheme. 

In support of this claim MetroPCS points out that the FCC

has identified “an immediate need for cellular service” and

has established the goal of “providing for up to two cellular

systems per market.” In the Matter of An Inquiry Into the Use

of Bands 825-845 MHz and 870-890 MHz for Cellular Communications Systems, Memorandum Opinion and Order on

Reconsideration, 89 F.C.C.2d 58, at ¶ 82 (1982). The FCC

further sought to preclude state regulation of the number of

service providers in a given market: “[W]e have already

determined ‘need’ on a nationwide basis and have preempted

2742 METROPCS, INC. v. SAN FRANCISCO
the states from denying state certification based on the number of existing carriers in the market or the capacity of existing carriers to handle the demand for mobile services.” Id.

Congress similarly has declared that “no State or local government shall have any authority to regulate the entry of or

the rates charged by any commercial mobile service,” 47

U.S.C. § 332(c)(3)(A), and that the TCA is “not intended to

limit or affect the Commission’s general authority over radio

telecommunications, including the authority to regulate the

construction, modification and operation of radio facilities,”

H.R. Conf. Rep. No. 104-458, at 209 (1996). For its part, the

City does little to address these arguments directly. 

Yet while MetroPCS does convincingly demonstrate that

the FCC has exclusive authority to issue licenses and regulate

the wireless services market — a point which appears to be

undisputed between the parties — the TCA itself fully accommodates these preemption concerns in its anti-discrimination

and anti-prohibition provisions. The TCA’s statutory scheme

ensures that the bandwidth usage and competitive market

dynamics sought by Congress and the FCC will be realized,

while at the same time allowing cities to prevent certain areas

from being overburdened by a proliferation of wireless facilities. MetroPCS’s vigorous per se arguments against necessitybased zoning decisions misconstrue the delicate regulatory

balance struck by the Act. 

First of all, a zoning decision to prohibit construction of a

wireless facility at a specific location — whether based on

necessity or not — does not implicate the FCC’s ability to

regulate the number of wireless providers in a given market.

Federal supremacy and the FCC’s exclusive power to regulate

wireless markets are fully vindicated in the TCA’s antidiscrimination and anti-prohibition provisions, especially

under the First Circuit’s “multiple provider” interpretation of

the “prohibition” clause. As discussed above, whatever a

locality’s judgment as to the need for a facility at a given site,

such a determination may not effectively prohibit service or

METROPCS, INC. v. SAN FRANCISCO 2743
reflect favoritism for one provider over another. This protects,

at a macro-level, the competitive markets that the FCC has

sought to construct. Put differently, if a single siting denial

does not create significant gaps in provider coverage and

reflects no unreasonable discrimination among providers,

market dynamics and FCC authority are not threatened in the

first place. 

Essentially, the TCA represents a congressional judgment

that local zoning decisions harmless to the FCC’s greater regulatory scheme — and only those proven to be harmless —

should be allowed to stand. As discussed earlier, the TCA

“does not affect or encroach upon the substantive standards to

be applied under established principles of state and local law,”

Oyster Bay, 166 F.3d at 494 (internal quotation marks omitted) (emphasis added), and it “does not create a substantive

federal limitation upon local land use regulatory power,”

Todd, 244 F.3d at 58; see also St. Croix County, 342 F.3d at

830 (same rule) (quoting Todd). MetroPCS’s preemption and

supremacy claims are thus misdirected. See, e.g., El Cajon, 83

F. Supp. 2d at 1168-69 (rejecting a federal preemption claim

in a § 332(c)(7) case). The fate of MetroPCS’s real concerns

in this area — that localities may be able to reject all siting

proposals that they feel are unnecessary — is determined by

our construction of the TCA’s prohibition provision. As discussed earlier, the First Circuit’s multiple-provider approach

best preserves market competition and addresses these

supremacy and preemption concerns as well. 

F. Environmental Concerns

[22] The last claim in this case is easily resolved. The TCA

provides that localities may not base zoning decisions on concerns over radio frequency emissions if the proposed wireless

facility complies with FCC emissions requirements: 

No State or local government or instrumentality

thereof may regulate the placement, construction,

2744 METROPCS, INC. v. SAN FRANCISCO
and modification of personal wireless service facilities on the basis of the environmental effects of radio

frequency emissions to the extent that such facilities

comply with the [FCC]’s regulations concerning

such emissions. 

47 U.S.C. § 332(c)(7)(B)(iv). There is no dispute that MetroPCS’s proposed facility for the Geary site complies with the

relevant FCC regulations. The only issue is whether the City’s

decision was impermissibly based on concerns over RF emissions. 

MetroPCS argues that the Board did base its decision on

environmental considerations. In support of this claim it notes

that “opponents of MetroPCS’s application made boisterous

presentations before the Board regarding RF emissions,

accompanied by argument, badges and t-shirts complaining

about RF emissions.” MetroPCS also claims that “the Board’s

denial motion expressly states that it was based on ‘all of the

public comments made in support of and opposed to the

appeal.’ ” Finally, MetroPCS notes that the Board’s decision

stated the proposed facility would “not promote the health,

safety and welfare of the city.” 

These observations are of little relevance to the issue here.

As the district court correctly points out, the party actually

challenging the MetroPCS CUP application before the Board

(Mr. Blum) took pains to clarify that his appeal was not based

on environmental concerns. Additionally, the Board’s formal

decision against MetroPCS did not state that it was “based

on” all public comments made in support of and opposed to

the appeal. MetroPCS’s quotation on this point is misleading.

The Board merely stated that it “reviewed and considered” all

such comments, which is exactly what a local zoning board

is supposed to do at a public hearing. (Emphasis added.) 

[23] Most crucially, the Board’s written decision does not

once mention RF emissions as a motivation for denying

METROPCS, INC. v. SAN FRANCISCO 2745
MetroPCS’s CUP application. Broadly stating (presumably as

a recitation of the City’s Policy Principles) that the proposed

facility “will not promote” public health, safety and welfare

is not remotely equivalent to basing a zoning decision on a

fear of RF emissions. Given the foregoing, the one case cited

by MetroPCS on this issue (Telespectrum, Inc. v. Pub. Serv.

Comm’n, 227 F.3d 414 (6th Cir. 2000)), which involved a

straightforward application of the TCA’s RF provision, is

inapposite. The district court was correct in granting the City

summary judgment as to this claim, and we affirm that ruling.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

ruling that the Board’s decision was properly “in writing,”

supported by substantial evidence and not impermissibly

based on concerns over radio frequency emissions under the

TCA. We also AFFIRM the district court’s ruling that material questions of fact remain as to whether the Board’s decision effectively prohibited the provision of personal wireless

services under the TCA. Finally, we REVERSE the district

court’s determination that the Board’s decision did not, as a

matter of law, unreasonably discriminate among providers of

functionally equivalent services within the meaning of the

TCA, and we REMAND this case for further proceedings

consistent with this opinion. 

GRABER, Circuit Judge, concurring in part and dissenting in

part:

I agree with the majority that genuine issues of material

fact remain with respect to whether the Board of Supervisors’

(Board) denial of MetroPCS’s application for a Conditional

Use Permit (CUP) to construct wireless facilities violated the

anti-discrimination and anti-prohibition provisions of the

Telecommunications Act of 1996 (TCA), 47 U.S.C. §§ 151-

2746 METROPCS, INC. v. SAN FRANCISCO
615. I write separately because the Board’s determination that

the proposed facilities are unnecessary, premised on the fact

that at least one other service provider serves the same area,

is irreconcilable with the anti-discrimination provision of the

TCA, 47 U.S.C. § 332(c)(7)(B)(i)(II). In view of that inconsistency, the Board’s “necessity” finding cannot support its

denial of MetroPCS’s request even if substantial evidence

supports that finding. I respectfully dissent from the majority’s conclusion to the contrary. 

According to the majority, a reviewing court’s analysis of

the reasons given by a zoning authority for denying a request

to construct wireless facilities begins and ends with determining whether those reasons are authorized by local regulations

and supported by evidence. Relying on the Second Circuit’s

decision in Cellular Telephone Co. v. Town of Oyster Bay, the

majority concludes that “the TCA ‘does not affect or encroach

upon the substantive standards to be applied under established

principles of state and local law.’ ” Maj. op. at 2722 (emphasis in majority opinion) (quoting Cellular Tel. Co. v. Town of

Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999)). That is, the

reasons stated by a zoning authority in denying a request for

wireless facilities are irrelevant under the majority’s analysis.

Accordingly, the majority concludes that the Board was entitled to reject MetroPCS’s application for a CUP solely

because “[n]othing in the record suggests that the area proximate to 5200 Geary Boulevard is not already served by at

least one other wireless service provider.” See Maj. op. at

2732-33 n.6 (finding no error in the Board’s “necessity” rationale because “the TCA is agnostic as to the substantive content of local regulations”).

The majority overstates the extent of the TCA’s indifference to the substantive content of local regulations when

those regulations are applied to zoning decisions regarding the

“placement, construction, and modification of personal wireless service facilities.” 47 U.S.C. § 332(c)(7)(B)(i). Oyster

Bay tempered its statement regarding the TCA’s neutrality by

METROPCS, INC. v. SAN FRANCISCO 2747
observing that at least one provision of the TCA places a substantive limitation on the permissible bases to support a zoning authority’s denial of a request for the construction of

wireless facilities: “We note . . . that [47 U.S.C.]

§ 332(c)(7)(B)(iv)[1] bars denials based on environmental

effects of rfes [radio frequency emissions,] if the applicant

facility would comply with FCC standards . . . .” Oyster Bay,

166 F.3d at 494 n.2. Although health and safety are undeniably a proper subject for local regulation, the TCA “ ‘prevents

the denial of a permit on the sole basis that the facility would

cause negative environmental effects.’ ” Id. at 495 (quoting

Iowa Wireless Servs., L.P. v. City of Moline, 29 F. Supp. 2d

915, 923 (C.D. Ill. 1998). 

Similarly, “the anti-discrimination and anti-prohibition provisions of the TCA, [47 U.S.C. § 332(c)(7)(B)(i)(I), (II),]

involve federal limitations on state authority.” S.W. Bell

Mobile Sys., Inc. v. Todd, 244 F.3d 51, 58 (1st Cir. 2001)

(internal quotation marks omitted). Unlike the TCA’s provision relating to radio frequency emissions, the antidiscrimination and anti-prohibition provisions do not

expressly prohibit the consideration of specific grounds in

zoning decisions regarding the construction of wireless facilities. Nonetheless, those provisions do limit the ways in which

a state or local government may apply its zoning regulations

to a request for the placement of wireless facilities. As Todd

observed, a local zoning authority is “subject to several substantive and procedural limitations that ‘subject [local governments] to an outer limit’ upon their ability to regulate personal

wireless services land use issues.” Id. at 57 (alteration in orig1

47 U.S.C. § 332(c)(7)(B)(iv) provides: 

No State or local government or instrumentality thereof may

regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental

effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such

emissions. 

2748 METROPCS, INC. v. SAN FRANCISCO
inal) (quoting Town of Amherst v. Omnipoint Communications Enters., Inc., 173 F.3d 9, 15 (1st Cir. 1999)); see also

APT Pittsburgh Ltd. P’ship v. Penn Township Butler County

of Pennsylvania, 196 F.3d 469, 473 (3d Cir. 1999) (noting

that the TCA “places several substantive and procedural limits

upon [local zoning] authority when it is exercised in relation

to personal wireless service facilities”). 

For example, the Board could not deny MetroPCS’s application solely on the ground that the availability of wireless

services in the Geary neighborhood may lead to increased

wireless telephone usage among automobile drivers in that

neighborhood, with a commensurate increase in traffic accidents. Traffic safety is certainly a legitimate zoning concern,

and the Board could easily produce substantial evidence to

support a correlation between wireless telephone usage

among drivers and traffic accidents. Nonetheless, the Board’s

rationale for its decision would be entirely inconsistent with

the TCA’s anti-prohibition provision, as carefully and correctly interpreted by the majority, because the Board would be

seeking to preserve a significant coverage gap. Accordingly,

a denial of permission to construct wireless facilities for that

reason alone should not survive judicial scrutiny. 

The Board’s necessity rationale presents the same problem.

Whatever its consistency with local zoning ordinances,2 the

denial of MetroPCS’s request on the ground that the Geary

neighborhood is already served by at least one other wireless

service provider is irreconcilable with § 332(c)(7)(B)(i)(II)’s

prohibition of zoning decisions that “unreasonably discriminate among providers of functionally equivalent services.” As

explained in the House Conference Report, the chief purpose

of the TCA is to “open[ ] all telecommunications markets to

competition.” H.R. Conf. Rep. No. 104-458, at 1 (1996). The

2Pursuant to San Francisco Planning Code § 303(c)(1), the Board may

consider whether a proposed development “is necessary or desirable for,

and compatible with, the neighborhood or community.” 

METROPCS, INC. v. SAN FRANCISCO 2749
TCA’s anti-discrimination provision furthers that purpose by

ensuring “that a State or local government does not in making

a decision regarding the placement, construction and modification of facilities of personal wireless services described in

this section unreasonably favor one competitor over another.”

Id. at 208 (emphasis added). 

Here, the Board’s necessity determination results in precisely the type of unreasonable discrimination that the TCA

seeks to prevent. It protects existing service providers against

potential competitors and effectively bars all new market

entrants from the area in question. Because the Board’s necessity determination is inherently and unreasonably discriminatory, it cannot serve as a valid, legally relevant basis for

rejecting MetroPCS’s application for a CUP. 

The majority misunderstands my point when it claims that

I argue “that any zoning regulation—or application of such a

regulation—based on considerations of community ‘necessity’ by its terms discriminates against new providers.” Maj.

op. at 2723. Instead, I argue much more simply, and much

more narrowly, that a local agency’s fact-finding about “necessity” must respect the statutorily required definition of

what “necessity” is.

Neither the majority nor the district court looked further

than the Board’s “necessity” rationale in holding that substantial evidence supported the Board’s decision as a whole.

Because “[a] significant number of community members that

opposed the installation indicated that they had adequate wireless services [from other providers] in their district,” the district court concluded that it “need not reach the question of

whether there is substantial evidence supporting the Board’s

determination that MetroPCS’s installation would cause

visual blight, or that MetroPCS did not need the antennas for

its own service.” MetroPCS, Inc. v. City & County of San

Francisco, 259 F. Supp. 2d 1024, 1010-11 & n.6 (N.D. Cal

2003). For the reasons discussed above, I disagree with the

2750 METROPCS, INC. v. SAN FRANCISCO
majority that the Board’s decision can rest on that ground

alone, even if that ground is supported by substantial evidence. Accordingly, on remand, I would instruct the district

court to consider whether substantial evidence supports the

legally relevant and permissible reasons that the Board gave

for denying MetroPCS’s request to construct wireless facilities. 

In all other respects, I concur in the majority’s opinion.

METROPCS, INC. v. SAN FRANCISCO 2751