FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SPRINT TELEPHONY PCS, L.P., a 

Delaware limited partnership,

Plaintiff-Appellant/

Cross-Appellee,

and

PACIFIC BELL WIRELESS LLC, a

Nevada limited liability company,

dba Cingular Wireless,

Plaintiff,

v.

Nos. 05-56076 COUNTY OF SAN DIEGO, a division 05-56435 of the State of California; GREG

COX  D.C. No. , in his capacity as a

supervisor of the County of San CV-03-1398-BTM

Diego; DIANNE JACOB, in her OPINION

capacity as a supervisor of the

County of San Diego; PAM

SLATER, in her capacity as a

supervisor of the County of San

Diego; RON ROBERTS, in his

capacity as a supervisor of the

County of San Diego; BILL HORN,

in his capacity as a supervisor of

the County of San Diego,

Defendants-Appellees/

Cross-Appellants. 

Appeals from the United States District Court

for the Southern District of California

Barry Ted Moskowitz, District Judge, Presiding

12699
Argued and Submitted

June 24, 2008—Pasadena, California

Filed September 11, 2008

Before: Alex Kozinski, Chief Judge, and

Andrew J. Kleinfeld, Michael Daly Hawkins,

A. Wallace Tashima, Sidney R. Thomas, Barry G. Silverman,

Susan P. Graber, Ronald M. Gould, Marsha S. Berzon,

Richard C. Tallman, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Graber;

Concurrence by Judge Gould

12700 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
COUNSEL

Daniel T. Pascucci and Nathan R. Hamler, Mintz Levin Cohn

Ferris Glovsky and Popeo PC, San Diego, California, for the

plaintiff-appellant/cross-appellee. 

Thomas D. Bunton, Senior Deputy County Counsel, County

of San Diego, San Diego, California, for the defendantsappellees-cross-appellants. 

Andrew G. McBride and Joshua S. Turner, Wiley Rein LLP,

Washington, D.C.; William K. Sanders, Deputy City Attorney, San Francisco, California; Joseph Van Eaton, Miller &

Van Eaton, P.L.L.C., Washington, D.C.; John J. Flynn III,

Nossaman, Guthner, Knox & Elliott, LLP, Irvine, California;

T. Scott Thompson, Davis Wright Tremaine, LLP, Washington, D.C.; and Elaine Duncan and Jesus G. Roman, Verizon

California, Inc., Thousand Oaks, California, for amici curiae.

OPINION

GRABER, Circuit Judge: 

The Telecommunications Act of 1996, Pub. L. No. 104-

104, 110 Stat. 56 (codified as amended in U.S.C. Titles 15, 18

& 47) (“the Act”), precludes state and local governments from

enacting ordinances that prohibit or have the effect of prohibiting the provision of telecommunications services, including

wireless services. In 2003, Defendant County of San Diego

enacted its Wireless Telecommunications Facilities ordinance.

San Diego County Ordinance No. 9549, § 1 (codified as San

Diego County Zoning Ord. §§ 6980-6991, 7352 (“the OrdiSPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12703
nance”)). The Ordinance imposes restrictions and permit

requirements on the construction and location of wireless telecommunications facilities. Plaintiff Sprint Telephony PCS

alleges that, on its face, the Ordinance prohibits or has the

effect of prohibiting the provision of wireless telecommunications services, in violation of the Act. The district court permanently enjoined the County from enforcing the Ordinance,

and a three-judge panel of this court affirmed. Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700 (9th

Cir. 2007). We granted rehearing en banc, 527 F.3d 791 (9th

Cir. 2008), and we now reverse.

FACTUAL AND PROCEDURAL HISTORY

The County of San Diego enacted the Ordinance “to establish comprehensive guidelines for the placement, design and

processing of wireless telecommunications facilities in all

zones within the County of San Diego.” San Diego County

Ordinance No. 9549, § 1. The Ordinance categorizes applications for wireless telecommunications facilities into four tiers,

depending primarily on the visibility and location of the proposed facility. San Diego County Zoning Ordinance § 6985.

For example, an application for a low-visibility structure in an

industrial zone generally must meet lesser requirements than

an application for a large tower in a residential zone. Id.

Regardless of tier, the Ordinance imposes substantive and

procedural requirements on applications for wireless facilities.

For example, non-camouflaged poles are prohibited in residential and rural zones; certain height and setback restrictions

apply in residential zones; and no more than three facilities

are allowed on any site, unless “a finding is made that colocation of more facilities is consistent with community character.” Id. An applicant is required to identify the proposed

facility’s geographic service area, to submit a “visual impact

analysis,” and to describe various technical attributes such as

height, maintenance requirements, and acoustical information,

although some exceptions apply. Id. § 6984. The proposed

12704 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
facility must be located within specified “preferred zones” or

“preferred locations,” unless those locations are “not technologically or legally feasible” or “a finding is made that the

proposed site is preferable due to aesthetic and community

character compatibility.” Id. § 6986. The proposed facility

also must meet many design requirements, primarily related

to aesthetics. Id. § 6987. The applicant also must perform regular maintenance of the facility, including graffiti removal

and proper landscaping. Id. § 6988. 

General zoning requirements also apply. For example,

hearings are conducted before a permit is granted, id. § 7356,

and on appeal, if requested, id. § 7366(h). Before a permit is

granted, the zoning board must find: 

That the location, size, design, and operating characteristics of the proposed use will be compatible

with adjacent uses, residents, buildings, or structures,

with consideration given to: 

1. Harmony in scale, bulk, coverage and density; 

2. The availability of public facilities, services and

utilities; 

3. The harmful effect, if any, upon desirable neighborhood character; 

4. The generation of traffic and the capacity and

physical character of surrounding streets; 

5. The suitability of the site for the type and intensity of use or development which is proposed;

and to 

6. Any other relevant impact of the proposed use[.]

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12705
Id. § 7358(a). The decision-maker retains discretionary

authority to deny a use permit application or to grant the

application conditionally. Id. § 7362. 

Soon after the County enacted the Ordinance, Sprint

brought this action, alleging that the Ordinance violates 47

U.S.C. § 253(a)1 because, on its face, it prohibits or has the

effect of prohibiting Sprint’s ability to provide wireless telecommunications services. Sprint sought injunctive and declaratory relief under the Supremacy Clause and 28 U.S.C.

§ 1331, and damages and attorney fees under 42 U.S.C.

§ 1983. The County argued that § 253(a) did not apply to the

Ordinance, because 47 U.S.C. § 332(c)(7) exclusively governs wireless regulations, and that, in any event, the Ordinance is not an effective prohibition on the provision of

wireless services. The County also argued that damages and

attorney fees are unavailable because Congress did not create

a private right of action enforceable under 42 U.S.C. § 1983.

The district court first held that facial challenges to a local

government’s wireless regulations could be brought under

either § 253(a) or § 332(c)(7), because neither is exclusive.

The district court next held, relying on our decision in City of

Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001), that

the Ordinance violated § 253(a). The district court therefore

permanently enjoined the County from enforcing the Ordinance against Sprint. Finally, the district court held that a

claim under 42 U.S.C. § 1983 for a violation of § 253(a) was

not cognizable and granted summary judgment to the County

on that claim. The parties cross-appealed. A three-judge panel

of this court affirmed, and we granted rehearing en banc.

1

In its complaint, Sprint also alleged that the Ordinance violated another

subsection of 47 U.S.C. § 253. The district court dismissed that cause of

action for failure to prosecute, and Sprint does not challenge that dismissal

on appeal. 

12706 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
STANDARDS OF REVIEW

We review for abuse of discretion the district court’s grant

of a permanent injunction, but review its underlying determinations “by the standard that applies to that determination.”

Ting v. AT&T, 319 F.3d 1126, 1134-35 (9th Cir. 2003).

DISCUSSION

Sprint argues that, on its face, the Ordinance prohibits or

has the effect of prohibiting the provision of wireless telecommunications services, in violation of the Act. As a threshold

issue, the parties dispute which provision of the Act—47

U.S.C. § 253(a) or 47 U.S.C. § 332(c)(7)(B)(i)(II)—applies to

this case. 

A. The Effective Prohibition Clauses of 47 U.S.C. § 253(a)

and 47 U.S.C. § 332(c)(7)(B)(i)(II)

When Congress passed the Act, it expressed its intent “to

promote competition and reduce regulation in order to secure

lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.” 110 Stat. at

56; see also Ting, 319 F.3d at 1143 (“[T]he purpose of the . . .

Act is to ‘provide for a pro-competitive, deregulatory national

policy framework . . . by opening all telecommunications

markets to competition.’ ” (quoting H.R. Rep. No. 104-458, at

113 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 124,

124)). The Act “represents a dramatic shift in the nature of

telecommunications regulation.” Cablevision of Boston, Inc.

v. Pub. Improvement Comm’n, 184 F.3d 88, 97 (1st Cir.

1999); see also Ting, 319 F.3d at 1143 (characterizing the Act

as a “dramatic break with the past”). Congress chose to

“end[ ] the States’ longstanding practice of granting and

maintaining local exchange monopolies.” AT&T Corp. v.

Iowa Utils. Bd., 525 U.S. 366, 405 (1999) (Thomas, J., concurring in part, dissenting in part). 

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12707
[1] Congress did so by enacting 47 U.S.C. § 253, a new

statutory section that preempts state and local regulations that

maintain the monopoly status of a telecommunications service

provider. See Cablevision of Boston, 184 F.3d at 98

(“Congress apparently feared that some states and municipalities might prefer to maintain the monopoly status of certain

providers . . . . Section 253(a) takes that choice away from

them. . . .”). Section 253(a) states: “No State or local statute

or regulation, or other State or local legal requirement, may

prohibit or have the effect of prohibiting the ability of any

entity to provide any interstate or intrastate telecommunications service.” 

The Act also contained new provisions applicable only to

wireless telecommunications service providers. The House

originally proposed legislation requiring the Federal Communications Commission (“FCC”) to regulate directly the placement of wireless telecommunications facilities. See H.R. Rep.

No. 104-204(I), § 107, at 94 (1995), reprinted in 1996

U.S.C.C.A.N. 10, 61. But the House and Senate conferees

decided instead to “preserve[ ] the authority of State and local

governments over zoning and land use matters except in the

limited circumstances set forth in the conference agreement.”

H.R. Rep. No. 104-458, § 704, at 207-08 (1996) (Conf. Rep.),

reprinted in 1996 U.S.C.C.A.N. 124, 222. 

[2] Accordingly, at the same time, Congress also enacted

47 U.S.C. § 332(c)(7). Section 332(c)(7)(A) preserves the

authority of local governments over zoning decisions regarding the placement and construction of wireless service facilities, subject to enumerated limitations in § 332(c)(7)(B). One

such limitation is that local regulations “shall not prohibit or

have the effect of prohibiting the provision of personal wireless services.” Id. § 332(c)(7)(B)(i)(II). 

We have interpreted § 332(c)(7)(B)(i)(II) in accordance

with its text. In MetroPCS, Inc. v. City of San Francisco, 400

F.3d 715, 730-31 (9th Cir. 2005), we held that a locality runs

12708 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
afoul of that provision if (1) it imposes a “city-wide general

ban on wireless services” or (2) it actually imposes restrictions that amount to an effective prohibition. 

[3] Our interpretation of § 253(a), however, has not hewn

as closely to its nearly identical text. Again, § 253(a) states:

“No State or local statute or regulation, or other State or local

legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” In Auburn, we became one

of the first federal circuit courts to interpret that provision.

We surveyed district court decisions and adopted their broad

interpretation of its preemptive effect. Auburn, 260 F.3d at

1175-76. In the course of doing so, we quoted § 253(a) somewhat inaccurately, inserting an ellipsis in the text of § 253(a).

Id. at 1175. We held that “[s]ection 253(a) preempts ‘regulations that not only “prohibit” outright the ability of any entity

to provide telecommunications services, but also those that

“may . . . have the effect of prohibiting” the provision of such

services.’ ” Id. (quoting Bell Atl.-Md., Inc. v. Prince George’s

County, 49 F. Supp. 2d 805, 814 (D. Md. 1999), vacated and

remanded on other grounds, 212 F.3d 863 (4th Cir. 2000));

see also Qwest Commc’ns Inc. v. City of Berkeley, 433 F.3d

1253, 1258 (9th Cir. 2006) (invalidating the locality’s regulations because they “may have the effect of prohibiting telecommunications companies from providing services”); Qwest

Corp. v. City of Portland, 385 F.3d 1236, 1241 (9th Cir.

2004) (emphasizing that “regulations that may have the effect

of prohibiting the provision of telecommunications services

are preempted [by § 253(a)]”). It followed from that truncated

version of the statute that, if a local regulation merely “create[s] a substantial . . . barrier” to the provision of services or

“allows a city to bar” provision of services, Auburn, 260 F.3d

at 1176, then § 253(a) preempts the regulation. Applying that

broad standard, we held that the municipal regulations at issue

in Auburn were preempted because they imposed procedural

requirements, charged fees, authorized civil and criminal penalties, and—“the ultimate cudgel”—reserved discretion to the

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12709
city to grant, deny, or revoke the telecommunications franchises. Id.

Our expansive reading of the preemptive effect of § 253(a)

has had far-reaching consequences. The Auburn standard has

led us to invalidate several local regulations. See Berkeley,

433 F.3d at 1258 (holding that Berkeley’s regulations were

preempted by § 253(a)); Portland, 385 F.3d at 1239-42

(reversing the district court’s holding that Portland’s regulations survived preemption and remanding for additional analysis). Three of our sister circuits also have followed our broad

interpretation of § 253(a), albeit with little discussion. See

P.R. Tel. Co. v. Municipality of Guayanilla, 450 F.3d 9, 18

(1st Cir. 2006) (citing Qwest Corp. v. City of Santa Fe, 380

F.3d 1258, 1269 (10th Cir. 2004)); Santa Fe, 380 F.3d at 1270

(quoting Auburn, 260 F.3d at 1176); TCG N.Y., Inc. v. City of

White Plains, 305 F.3d 67, 76 (2d Cir. 2002). Applying our

Auburn standard, federal district courts have invalidated local

regulations in tens of cases across this nation’s towns and cities. See, e.g., NextG Networks of Cal., Inc. v. County of Los

Angeles, 522 F. Supp. 2d 1240, 1253 (C.D. Cal. 2007); TC

Sys., Inc. v. Town of Colonie, 263 F. Supp. 2d 471, 481-84

(N.D.N.Y. 2003); XO Mo., Inc. v. City of Maryland Heights,

256 F. Supp. 2d 987, 996-98 (E.D. Mo. 2003). 

But the tension between the Auburn standard and the full

text of § 253(a) has not gone unnoticed. See City of Portland

v. Elec. Lightwave, Inc., 452 F. Supp. 2d 1049, 1059 (D. Or.

2005) (“The Ninth Circuit’s interpretation of the scope of section 253(a) appears to depart from the plain meaning of the

statute . . . .”); Qwest Corp. v. City of Portland, 200 F. Supp.

2d 1250, 1255 (D. Or. 2002) (construing the Auburn standard

as dictum because reading § 253(a) as preempting regulations

that may have the effect of prohibiting telecommunications

services “simply misreads the plain wording of the statute”),

rev’d by Portland, 385 F.3d at 1241 (“Like it or not, both we

and the district court are bound by our prior ruling [in

Auburn].”); see also Newpath Networks LLC v. City of Irvine,

12710 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
No. SACV-06-550, 2008 WL 2199689, at *4 (C.D. Cal. Mar.

10, 2008) (noting that “the Court is sympathetic to Irvine’s

argument that judicial decisions in this area have not been

particularly instructive in telling municipalities how they may

regulate in accordance with the . . . Act”). Recently, the

Eighth Circuit rejected the Auburn standard and held that, to

demonstrate preemption, a plaintiff “must show actual or

effective prohibition, rather than the mere possibility of prohibition.” Level 3 Commc’ns, L.L.C. v. City of St. Louis, 477

F.3d 528, 532-33 (8th Cir. 2007); see also AT&T Commc’ns

of Pac. Nw., Inc. v. City of Eugene, 35 P.3d 1029, 1047-48

(Or. Ct. App. 2001) (implicitly rejecting the Auburn standard). 

[4] We find persuasive the Eighth Circuit’s and district

courts’ critique of Auburn. Section 253(a) provides that “[n]o

State or local statute or regulation . . . may prohibit or have

the effect of prohibiting. . . provi[sion of] . . . telecommunications service.” In context, it is clear that Congress’ use of the

word “may” works in tandem with the negative modifier

“[n]o” to convey the meaning that “state and local regulations

shall not prohibit or have the effect of prohibiting telecommunications service.” Our previous interpretation of the word

“may” as meaning “might possibly” is incorrect. We therefore

overrule Auburn and join the Eighth Circuit in holding that “a

plaintiff suing a municipality under section 253(a) must show

actual or effective prohibition, rather than the mere possibility

of prohibition.” Level 3 Commc’ns, 477 F.3d at 532. 

Although our conclusion rests on the unambiguous text of

§ 253(a), we note that our interpretation is consistent with the

FCC’s. See In re Cal. Payphone Ass’n, 12 F.C.C.R. 14191,

14209 (1997) (holding that, to be preempted by § 253(a), a

regulation “would have to actually prohibit or effectively prohibit” the provision of services); Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)

(holding that the two-step Chevron U.S.A. Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984), analysis applies to

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12711
FCC rulings). Were the statute ambiguous, we would defer to

the FCC under Chevron, as its interpretation is certainly reasonable. 467 U.S. at 843. Our narrow interpretation of the preemptive effect of § 253(a) also is consistent with the

presumption that “express preemption statutory provisions

should be given a narrow interpretation.” Air Conditioning &

Refrigeration Inst. v. Energy Res. Conservation & Dev.

Comm’n, 410 F.3d 492, 496 (9th Cir. 2005).

Our present interpretation of § 253(a) is buttressed by our

interpretation of the same relevant text in § 332(c)(7)(B)(i)(II)

—“prohibit or have the effect of prohibiting.” In MetroPCS,

to construe § 332(c)(7)(B)(i)(II), we focused on the actual

effects of the city’s ordinance, not on what effects the ordinance might possibly allow. 400 F.3d at 732-34. Indeed, we

rejected the plaintiff’s argument that, because the city’s zoning ordinance granted discretion to the city to reject an application based on vague standards such as “necessity,” the

ordinance necessarily constituted an effective prohibition. Id.

at 724, 732. Consequently, our interpretation of the “effective

prohibition” clause of § 332(c)(7)(B)(i)(II) differed markedly

from Auburn’s interpretation of the same relevant text in

§ 253(a). Compare MetroPCS, 400 F.3d at 731-35 (analyzing,

under § 332(c)(7)(B)(i)(II), whether the city’s ordinance and

decision actually have the effect of prohibiting the provision

of wireless services), with Portland, 385 F.3d at 1241

(“[R]egulations that may have the effect of prohibiting the

provision of telecommunications services are preempted [by

§ 253(a)].”); compare also MetroPCS, 400 F.3d at 732

(rejecting the argument that “the City’s zoning ‘criteria,’

which allow for [permit] 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”), with

Auburn, 260 F.3d at 1176 (holding that the city’s ordinance

is an effective prohibition under § 253(a), in large part

because the “city reserves discretion to grant, deny, or revoke

the [telecommunications] franchises”). 

12712 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
When Congress uses the same text in the same statute, we

presume that it intended the same meaning. See N. Sports, Inc.

v. Knupfer (In re Wind N’ Wave), 509 F.3d 938, 945 (9th Cir.

2007) (applying the presumption); Boise Cascade Corp. v.

EPA, 942 F.2d 1427, 1432 (9th Cir. 1991) (“We must presume that words used more than once in the same statute have

the same meaning.”); see also Smith v. City of Jackson, 544

U.S. 228, 233 (2005) (plurality opinion) (“[W]e begin with

the premise that when Congress uses the same language in

two statutes having similar purposes, particularly when one is

enacted shortly after the other, it is appropriate to presume

that Congress intended that text to have the same meaning in

both statutes.”); id. at 261 (O’Connor, J., concurring in the

judgment) (stating that the presumption should apply in the

absence of “strong evidence” to the contrary). We see nothing

suggesting that Congress intended a different meaning of the

text “prohibit or have the effect of prohibiting” in the two

statutory provisions, enacted at the same time, in the same

statute. 

[5] Our holding today therefore harmonizes our interpretations of the identical relevant text in §§ 253(a) and

332(c)(7)(B)(i)(II).2 Under both, a plaintiff must establish

either an outright prohibition or an effective prohibition on

the provision of telecommunications services; a plaintiff’s

showing that a locality could potentially prohibit the provision

of telecommunications services is insufficient. 

Because Sprint’s suit hinges on the statutory text that we

interpreted above—“prohibit or have the effect of

prohibiting”—we need not decide whether Sprint’s suit falls

under § 253 or § 332. As we now hold, the legal standard is

the same under either. 

2We make no comment on what differences, if any, exist between the

two statutory sections in other contexts. 

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12713
B. The Effective Prohibition Standard Applied to the County

of San Diego’s Ordinance

[6] Having established the proper legal standard, we turn to

Sprint’s facial challenge to the Ordinance. “A facial challenge

to a legislative Act is, of course, the most difficult challenge

to mount successfully, since the challenger must establish that

no set of circumstances exists under which the Act would be

valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).3

The Ordinance plainly is not an outright ban on wireless

facilities. We thus consider whether the Ordinance effectively

prohibits the provision of wireless facilities. We have no difficulty concluding that it does not. 

The Ordinance imposes a layer of requirements for wireless

facilities in addition to the zoning requirements for other

structures. On the face of the Ordinance, none of the requirements, individually or in combination, prohibits the construction of sufficient facilities to provide wireless services to the

County of San Diego. 

[7] Most of Sprint’s arguments focus on the discretion

reserved to the zoning board. For instance, Sprint complains

that the zoning board must consider a number of “malleable

and open-ended concepts” such as community character and

3The Supreme Court and this court have called into question the continuing validity of the Salerno rule in the context of First Amendment challenges. See, e.g., Wash. State Grange v. Wash. State Republican Party,

128 S. Ct. 1184, 1190 (2008); Hotel & Motel Ass’n of Oakland v. City of

Oakland, 344 F.3d 959, 971-72 (9th Cir. 2003). In cases involving federal

preemption of a local statute, however, the rule applies with full force. See

Hotel & Motel Ass’n, 344 F.3d at 971 (“To bring a successful facial challenge outside the context of the First Amendment, ‘the challenger must

establish that no set of circumstances exists under which the [statute]

would be valid.’ ” (alteration in original) (quoting Salerno, 481 U.S. at

745)); see also Anderson v. Edwards, 514 U.S. 143, 155 n.6 (1995) (unanimous opinion) (applying Salerno to a federal preemption facial challenge

to a state statute). 

12714 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
aesthetics; it may deny or modify applications for “any other

relevant impact of the proposed use”; and it may impose

almost any condition that it deems appropriate. A certain level

of discretion is involved in evaluating any application for a

zoning permit. It is certainly true that a zoning board could

exercise its discretion to effectively prohibit the provision of

wireless services, but it is equally true (and more likely) that

a zoning board would exercise its discretion only to balance

the competing goals of an ordinance—the provision of wireless services and other valid public goals such as safety and

aesthetics. In any event, Sprint cannot meet its high burden of

proving that “no set of circumstances exists under which the

[Ordinance] would be valid,” Salerno, 481 U.S. at 745, simply because the zoning board exercises some discretion. 

[8] The same reasoning applies to Sprint’s complaint that

the Ordinance imposes detailed application requirements and

requires public hearings. Although a zoning board could conceivably use these procedural requirements to stall applications and thus effectively prohibit the provision of wireless

services, the zoning board equally could use these tools to

evaluate fully and promptly the merits of an application.

Sprint has pointed to no requirement that, on its face, demonstrates that Sprint is effectively prohibited from providing

wireless services. For example, the Ordinance does not

impose an excessively long waiting period that would amount

to an effective prohibition. Moreover, if a telecommunications

provider believes that the zoning board is in fact using its procedural rules to delay unreasonably an application, or its discretionary authority to deny an application unjustifiably, the

Act provides an expedited judicial review process in federal

or state court. See 47 U.S.C. § 332(c)(7)(B)(ii) & (v). 

[9] We are equally unpersuaded by Sprint’s challenges to

the substantive requirements of the Ordinance. Sprint has not

identified a single requirement that effectively prohibits it

from providing wireless services. On the face of the Ordinance, requiring a certain amount of camouflage, modest setSPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12715
backs, and maintenance of the facility are reasonable and

responsible conditions for the construction of wireless facilities, not an effective prohibition. 

That is not to say, of course, that a plaintiff could never

succeed in a facial challenge. If an ordinance required, for

instance, that all facilities be underground and the plaintiff

introduced evidence that, to operate, wireless facilities must

be above ground, the ordinance would effectively prohibit it

from providing services. Or, if an ordinance mandated that no

wireless facilities be located within one mile of a road, a

plaintiff could show that, because of the number and location

of roads, the rule constituted an effective prohibition. We

have held previously that rules effecting a “significant gap” in

service coverage could amount to an effective prohibition,

MetroPCS, 400 F.3d at 731-35, and we have no reason to

question that holding today. 

[10] In conclusion, the Ordinance does not effectively prohibit Sprint from providing wireless services. Therefore, the

Act does not preempt the County’s wireless telecommunications ordinance. 

C. Section 1983 claim

[11] We adopt the reasoning and conclusion of the threejudge panel that 42 U.S.C. § 1983 claims cannot be brought

for violations of 47 U.S.C. § 253. Sprint Telephony, 490 F.3d

at 716-18; accord Santa Fe, 380 F.3d at 1266-67; see also

Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 812-15

(9th Cir. 2007) (holding that § 1983 claims cannot be brought

for violations of 47 U.S.C. § 332). 

AFFIRMED with respect to the § 1983 claim; otherwise

REVERSED. Costs on appeal awarded to Defendants -

Appellees/Cross-Appellants. 

12716 SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO
GOULD, Circuit Judge, concurring: 

I concur in full in Judge Graber’s majority opinion, holding

that Section 253(a) preempts any state or local law that actually or effectively prohibits provision of telecommunication

services. I write separately to add my view that normally local

governments will have the ability to enforce reasonable zoning ordinances that might affect where and how a cellular

tower is located, but that will not effectively prohibit cellular

telephone service. Zoning ordinances, in my view, will be

preempted only if they would substantially interfere with the

ability of the carrier to provide such services. Cases of a preempted zoning ordinance will doubtless be few and far

between, and the record in this case shows that telecommunication services here were not effectively barred by the zoning

ordinance. 

SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO 12717