FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SPRINT PCS ASSETS, L.L.C., a 

Delaware limited liability

company, wholly-owned by Sprint

Telephony PCS, LP, a Delaware

limited partnership,

Plaintiff-Appellee,

v. No. 05-56106

CITY OF PALOS VERDES ESTATES, a D.C. No.

California municipality; CITY CV-03-00825-AHS

COUNCIL OF THE CITY OF PALOS Central District

VERDES ESTATES, its governing of California,

body; JOSEPH SHERWOOD, in his Santa Ana

official capacity as Mayor Pro ORDER Tem of the City of Palos Verdes  REQUESTING Estates; JOHN FLOOD, in his official THAT THE capacity as Councilmember of the SUPREME COURT City of Palos Verdes Estates; OF CALIFORNIA ROSEMARY HUMPHREY, in her DECIDE A official capacity as QUESTION OF Councilmember of the City of CALIFORNIA Palos Verdes Estates; DWIGHT LAW ABBOTT, in his official capacity as

Councilmember of the City of

Palos Verdes Estates; JAMES F.

GOODHART, in his official capacity

as Councilmember of the City of

Palos Verdes Estates,

Defendants-Appellants. 

Filed May 8, 2007

5179
Before: Barry G. Silverman, Kim McLane Wardlaw, and

Jay S. Bybee, Circuit Judges.

ORDER

We respectfully request that the Supreme Court of California decide the question set forth in Part III of this order. Submission of this appeal is deferred, and all further proceedings

are stayed pending receipt of the Supreme Court of California’s decision. The panel retains jurisdiction over further proceedings in this court. The parties will notify the Clerk of this

court within one week after the Supreme Court of California

accepts or declines this request, and again within one week

after that court renders its decision.

I.

Pursuant to Rule 8.548 of the California Rules of Court, a

panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, requests that the

Supreme Court of California decide whether California Public

Utilities Code §§ 7901 and 7901.1 permit public entities to

regulate the placement of telephone equipment in public

rights of way on aesthetic grounds. The decisions of the

Supreme Court of California and the California Courts of

Appeal provide no answer, and a similar question is currently

pending before the Supreme Court of California in Sprint

Telephony PCS v. County of San Diego, Case No. S145541.

We understand that the Supreme Court of California may

reformulate our question, and we agree to accept and follow

the court’s decision.

5180 SPRINT PCS v. CITY OF PALOS VERDES ESTATES
II.

The caption of this case is:

SPRINT PCS ASSETS, L.L.C., a 

Delaware limited liability

company, wholly-owned by Sprint

Telephony PCS, LP, a Delaware

limited partnership,

Plaintiff-Appellee,

v.

CITY OF PALOS VERDES ESTATES, a

California municipality; CITY

COUNCIL OF THE CITY OF PALOS

VERDES ESTATES, its governing No. 05-56106 body; JOSEPH SHERWOOD, in his

official capacity as Mayor Pro D.C. No.

Tem of the City of Palos Verdes CV-03-00825-AHS 

Estates; JOHN Central District FLOOD, in his official

capacity as Councilmember of the of California,

City of Palos Verdes Estates; Santa Ana

ROSEMARY HUMPHREY, in her

official capacity as

Councilmember of the City of

Palos Verdes Estates; DWIGHT

ABBOTT, in his official capacity as

Councilmember of the City of

Palos Verdes Estates; JAMES F.

GOODHART, in his official capacity

as Councilmember of the City of

Palos Verdes Estates,

Defendants-Appellants. 

SPRINT PCS v. CITY OF PALOS VERDES ESTATES 5181
Counsel for the parties are as follows: 

For Plaintiff-Appellee: 

John J. Flynn

Gregory W. Sanders

Nossaman, Guthner, Knox & Elliot, LLP

18101 Von Karman Avenue, Suite 1800

Irvine, California 92612

(949) 833-7800 

For Defendants-Appellants: 

Scott J. Grossberg

Richard R. Clouse

Amy von Kelsche-Berk

Cihigoyenetche, Grossberg & Clouse

8038 Haven Avenue, Suite E

Rancho Cucamonga, California 91730

(909) 483-1850 

Daniel P. Barer

Pollak, Vida & Fisher

1800 Century Park East, Suite 400

Los Angeles, California 90067

(310) 551-3400 

If the Supreme Court of California accepts this request,

Appellants should be deemed the petitioners.

III.

The question for which we seek an answer is:

Do California Public Utilities Code §§ 7901 and

7901.1 permit public entities to regulate the placement of telephone equipment in public rights of way

on aesthetic grounds? 

5182 SPRINT PCS v. CITY OF PALOS VERDES ESTATES
This appeal involves the Telecommunications Act of 1996,

47 U.S.C. § 332(c)(7)(B)(iii), which requires this court to perform substantial evidence review of Appellants’ application

of the City of Palos Verdes Estates’ wireless ordinance. The

answer to the foregoing question of law is necessary for this

court to conduct that review, because the validity of the wireless ordinance under California law is a threshold question.

IV.

The relevant facts are as follows: 

The City of Rancho Palos Verdes (“the City”) enacted

Chapter 18.55 of the Palos Verdes Municipal Code pursuant

to the federal Telecommunications Act of 1996, 47 U.S.C.

§ 332(c)(7), which preserves “the authority of . . . State or

local government . . . decisions regarding the placement, construction, and modification of personal wireless service facilities.” Chapter 18.55 sets forth permit standards and

requirements for the installation of personal wireless facilities.

In applying this chapter of the Municipal Code, the City considers the aesthetic impact of any proposed wireless facility.

In 2002, Sprint PCS Assets, L.L.C. (“Sprint”) submitted

applications to construct two wireless facilities in public

rights of way in the City. Both of those applications were

denied. After its appeals to the City’s Planning Commission

and the City Counsel were denied, Sprint challenged the decision by bringing suit in the Central District of California.

Sprint’s complaint alleged, inter alia, that the City violated 47

U.S.C. § 332(c)(7)(B)(iii), which provides that: “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.” The district court

reviewed the City’s decision and granted summary judgment

in favor of Sprint, holding that the City’s “denials of Sprint’s

permit applications were not supported by substantial eviSPRINT PCS v. CITY OF PALOS VERDES ESTATES 5183
dence. Aesthetic grounds do not qualify under California law

and California Public Utilities Code sections 7901 and 7901.1

preempt Chapter 18.55 of the City’s ordinances.”

V.

We respectfully submit that the question we pose is worthy

of decision because it arises frequently in Telecommunications Act cases, its decision may be dispositive in this case,

it is not answered by any opinions of the Supreme Court of

California or the California Courts of Appeal, and it is currently pending in another case before the Supreme Court of

California. 

In an unpublished, non-precedential, memorandum disposition, our court held that California Public Utilities Code

§§ 7901 and 7901.1 preempted the City of La Cañada Flintridge from denying a permit for wireless service facilities

based on aesthetics. Sprint PCS Assets, L.L.C. v. City of La

Cañada Flintridge, No. 05-55014, 182 Fed. Appx. 688 (9th

Cir. 2006) (mem.). In reaching that conclusion, our court

examined the legislative history of those code sections, and

analyzed the language of the statute, but did not rely on any

opinions of the Supreme Court of California or the California

Courts of Appeal. 

The California Court of Appeal also addressed this issue in

Sprint Telephony PCS v. County of San Diego, Case No.

D045957, and disagreed with the conclusion reached by our

court in City of La Cañada Flintridge. However, that court’s

decision was depublished when the Supreme Court of California granted a petition for review on September 13, 2006. 

We respectfully request that the Supreme Court of California accept and decide this question.

VI.

The Clerk shall file this order and ten copies, along with all

briefs in this appeal with the Supreme Court of California;

5184 SPRINT PCS v. CITY OF PALOS VERDES ESTATES
provide certificates of service to the parties; and provide additional record materials if so requested by the Supreme Court

of California. See Cal. R. Ct. 8.548(c) and (d). 

IT IS SO ORDERED.

SPRINT PCS v. CITY OF PALOS VERDES ESTATES 5185
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ADMINISTRATIVE OFFICE—U.S. COURTS

BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted

© 2007 Thomson/West.