Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates

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
Tem of the City of Palos Verdes  ORDER
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
5180 SPRINT PCS v. CITY OF PALOS VERDES ESTATES
Before: Barry G. Silverman, Kim McLane Wardlaw, and
Jay S. Bybee, Circuit Judges.

ORDER

We respectfully request that the Supreme Court of Califor-
nia decide the question set forth in Part III of this order. Sub-
mission of this appeal is deferred, and all further proceedings
are stayed pending receipt of the Supreme Court of Califor-
nia’s decision. The panel retains jurisdiction over further pro-
ceedings 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 Cir-
cuit, 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.
 SPRINT PCS v. CITY OF PALOS VERDES ESTATES 5181
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
Central District
Estates; JOHN 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.

5182 SPRINT PCS v. CITY OF PALOS VERDES ESTATES
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 place-
ment of telephone equipment in public rights of way
on aesthetic grounds?
 SPRINT PCS v. CITY OF PALOS VERDES ESTATES 5183
This appeal involves the Telecommunications Act of 1996,
47 U.S.C. § 332(c)(7)(B)(iii), which requires this court to per-
form 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 wire-
less 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, con-
struction, and modification of personal wireless service facili-
ties.” 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 con-
siders 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 deci-
sion 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 substan-
tial 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 evi-
5184 SPRINT PCS v. CITY OF PALOS VERDES ESTATES
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 Telecommunica-
tions 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 cur-
rently pending in another case before the Supreme Court of
California.

In an unpublished, non-precedential, memorandum disposi-
tion, our court held that California Public Utilities Code
§§ 7901 and 7901.1 preempted the City of La Cañada Flin-
tridge 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 Califor-
nia granted a petition for review on September 13, 2006.

We respectfully request that the Supreme Court of Califor-
nia 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;
 SPRINT PCS v. CITY OF PALOS VERDES ESTATES 5185
provide certificates of service to the parties; and provide addi-
tional record materials if so requested by the Supreme Court
of California. See Cal. R. Ct. 8.548(c) and (d).

IT IS SO ORDERED.
 PRINTED 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.