- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Preemption
- Date Filed: 12-11-2013
- Case #: 10-56877; 10-56944
- Judge(s)/Court Below: Circuit Judge Ikuta for the Court; Circuit Judges Graber and Hurwitz
- Full Text Opinion
The City of Huntington Beach challenged the district court’s determination that the Telecommunications Act of 1996 (“TCA”) preempted Measure C, a voter-enacted city initiative requiring Omnipoint Communications, Inc. (doing business as “T-Mobile”) to obtain voter approval before installing wireless antennae in two city-owned parks. After examining the historical and statutory context of the TCA, the Ninth Circuit concluded that Congress intended to “preserve local land use authorities’ legislative and adjudicative authority subject to certain substantive and procedural limitations” while encouraging the development of wireless communications. In light of this conclusion, the panel determined that Measure C did not “regulate or impose generally applicable rules on ‘the placement, construction, and modification of personal wireless service facilities’” or interfere with the City’s adjudicative process for such decisions. The panel held that the voter-approval requirement of Measure C fell outside the preemptive scope of the TCA because it was a non-regulatory and non-adjudicative exercise of the City’s property rights, similar to that of a private landowner. Thus, the panel determined that Measure C was not a land use regulation or decision preempted by the TCA, and the substantive and procedural requirements in 47 USC § 332(c)(7)(B)(i)-(iv) were inapplicable. REVERSED and REMANDED.