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,

No. 05-56106 v.

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

CV-03-00825-AHS California municipality; CITY

Central District COUNCIL OF THE CITY OF PALOS

of California, VERDES ESTATES, its governing

Santa Ana body; JOSEPH SHERWOOD, in his

official capacity as Mayor Pro ORDER

Tem of the City of Palos Verdes  CLARIFYING

Estates; JOHN FLOOD, in his official REQUEST THAT

capacity as Councilmember of the THE SUPREME

City of Palos Verdes Estates; COURT OF

ROSEMARY HUMPHREY, in her CALIFORNIA

official capacity as DECIDE A

Councilmember of the City of QUESTION OF

Palos Verdes Estates; DWIGHT CALIFORNIA

ABBOTT, in his official capacity as LAW

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. 

14989
Filed November 16, 2007

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

Jay S. Bybee, Circuit Judges.

ORDER

On May 8, 2007, we respectfully requested that the

Supreme Court of California decide the question of 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. 

On August 15, 2007, pursuant to California Rule of Court

8.548(f)(5), the California Supreme Court requested that we

clarify our question in light of the significance, if any, of our

decision in Sprint Telephony PCS, L.P. v. County of San

Diego, et al., 490 F.3d 700 (9th Cir. 2007). 

We incorporate by reference our order of May 8, 2007.

Having reviewed our decision in Sprint Telephony, we

respectfully suggest that it does not answer the question of

California law that we certified for decision. 

In Sprint Telephony, we considered whether the County of

San Diego’s (“the County”) wireless telecommunication ordinance (“WTO”) ran afoul of 47 U.S.C. § 253(a), which prevents state or local regulations from effectively prohibiting

the ability of entities to provide telecommunications services.

The WTO created a four-tier system for granting wireless permits, requiring an applicant to submit voluminous material

before the County would grant a conditional use permit.

Sprint PCS alleged that the WTO was so “onerous” as to

effectively prohibit the provision of telecommunication services. Because neither party challenged the validity of the

WTO under California law, we only resolved questions of

14990 SPRINT PCS ASSETS v. PALOS VERDES ESTATES
federal law. We held in Sprint Telephony that the WTO was

“outside the scope of permissible land use regulations because

it has the effect of prohibiting wireless communication services” and on that basis concluded that § 253(a) preempted

the WTO. Id. at 718. 

This appeal presents two questions distinct from those

answered in Sprint Telephony. First, we must answer 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. Second, we

must consider whether the zoning ordinances in question are

permissible under federal law. However, we need reach this

second question only if the zoning ordinances are valid under

California state law. Only if the California Supreme Court

were to decide that California Public Utilities Code §§ 7901

and 7901.1 allow aesthetic zoning would we be required to

determine whether the aesthetic zoning in question is preempted by § 253(a). 

For these reasons, we again certify to the Supreme Court of

California the question of whether the 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. 

IT IS SO ORDERED.

__________________________________

KIM McLANE WARDLAW 

Circuit Judge, U.S. Court of Appeals for 

the Ninth Circuit

SPRINT PCS ASSETS v. PALOS VERDES ESTATES 14991
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