### FOR PUBLICATION


### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT



#  S PRINT PCS A SSETS , 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
C ITY OF P ALOS V ERDES E STATES , a D.C. No. California municipality; C ITY CV-03-00825-AHS C OUNCIL OF THE C ITY OF P ALOS Central District V ERDES E STATES , its governing of California, body; J OSEPH S HERWOOD , in his Santa Ana official capacity as Mayor Pro ORDER Tem of the City of Palos Verdes 

#  REQUESTING Estates; J OHN F LOOD , in his official THAT THE capacity as Councilmember of the SUPREME COURT City of Palos Verdes Estates; OF CALIFORNIA R OSEMARY H UMPHREY , in her DECIDE A official capacity as QUESTION OF Councilmember of the City of CALIFORNIA Palos Verdes Estates; D WIGHT LAW A BBOTT , in his official capacity as Councilmember of the City of Palos Verdes Estates; J AMES F. G OODHART , in his official capacity as Councilmember of the City of Palos Verdes Estates,

Defendants-Appellants. 

# 

Filed May 8, 2007

5179Before: 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 proceedingsare 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, apanel 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 S PRINT PCS v. C ITY OF P ALOS V ERDES E STATESII.

The caption of this case is: 

#  S PRINT PCS A SSETS , L.L.C., a Delaware limited liability company, wholly-owned by Sprint Telephony PCS, LP, a Delaware limited partnership, Plaintiff-Appellee,

v. C ITY OF P ALOS V ERDES E STATES , a California municipality; C ITY C OUNCIL OF THE C ITY OF P ALOS V ERDES E STATES , its governing No. 05-56106 body; J OSEPH S HERWOOD , in his D.C. No. official capacity as Mayor Pro CV-03-00825-AHS Tem of the City of Palos Verdes 

# 

Central District Estates; J OHN F LOOD , in his official of California, capacity as Councilmember of the Santa Ana City of Palos Verdes Estates; R OSEMARY H UMPHREY , in her official capacity as Councilmember of the City of Palos Verdes Estates; D WIGHT A BBOTT , in his official capacity as Councilmember of the City of Palos Verdes Estates; J AMES F. G OODHART , in his official capacity as Councilmember of the City of Palos Verdes Estates, Defendants-Appellants. 

#  5181 S PRINT PCS v. C ITY OF P ALOS V ERDES E STATESCounsel 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 and7901.1 permit public entities to regulate the placement of telephone equipment in public rights of way on aesthetic grounds? 5182 S PRINT PCS v. C ITY OF P ALOS V ERDES E STATESThis 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 thiscourt 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 orlocal 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 Commissionand 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 wirelessservice 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’spermit applications were not supported by substantial evi5183 S PRINT PCS v. C ITY OF P ALOS V ERDES E STATESdence. 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 worthyof 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 ofCalifornia 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 Ca ñada 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 Ca ñada Flintridge . However, that court’sdecision 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 S PRINT PCS v. C ITY OF P ALOS V ERDES E STATESprovide 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. 5185 S PRINT PCS v. C ITY OF P ALOS V ERDES E STATESPRINTED FOR 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.