OMNIPOINT COMMUNICATIONS, INC., a Delaware corporation, DBA T-Mobile, Plaintiff-Appellee/ Cross-Appellant,
CITY OF HUNTINGTON BEACH a public entity organized and existing under the laws of the State of California, City Council of the City of Huntington Beach, Defendants-Appellants/ Cross-Appellees.
Argued Nov. 6, 2012.
Resubmitted Dec. 4, 2013.
Jennifer McGrath, City Attorney, and Scott F. Field (argued), Assistant City Attorney, Huntington Beach, CA, for Defendants-Appellants/Cross-Appellees.
Martin L. Fineman (argued), Davis Wright Tremaine LLP, San Francisco, CA; John J. Flynn III and Benjamin Z. Rubin, Nossaman LLP, Irvine, CA, for Plaintiff-Appellee/Cross-Appellant.
Before: SUSAN P. GRABER, SANDRA S. IKUTA, and ANDREW D. HURWITZ, Circuit Judges.
IKUTA, Circuit Judge:
The City of Huntington Beach appeals the district court's determination that the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (codified as amended at U.S.C. Titles 15, 18, and 47) (the TCA), preempted its decision to require Omnipoint Communications, Inc. (doing business as " T-Mobile" ), to obtain voter approval before constructing mobile telephone antennae on city-owned park property. T-Mobile cross-appeals the district court's denial of permanent injunctive relief. We conclude that the City's decision was not preempted and consequently reverse the district court.
We first consider the preemptive scope of the TCA. Because congressional intent " is the ultimate touchstone of preemption analysis," when " Congress adopts a statute that provides a reliable indication of Congressional intent regarding preemption, the scope of federal preemption is determined by the statute." Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir.2007) (internal quotation marks omitted). Although congressional intent " primarily is discerned from the language of the preemption statute and the statutory framework surrounding it," also relevant are " the structure and purpose of the statute as a whole, as revealed not only in the text, but through the reviewing court's reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect ... the law" and parties whose actions are affected by the statute.
Medtronic, Inc. v. Lohr, 518 U.S. 470, 486, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (internal quotation marks and citations omitted); see also Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (explaining that Congress's intent to preempt " may be explicitly stated in the statute's language or implicitly contained in its structure and purpose" (internal quotation marks omitted)). Therefore, we begin by assessing the text of the relevant provisions of the TCA and their historical and statutory context.
In 1996, Congress passed the TCA to encourage the development of telecommunications technologies, including wireless telephone services. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Among other means to this end, Congress enacted 47 U.S.C. § 332(c)(7), entitled " [p]reservation of local zoning authority," which " was intended to minimize federal interference with State and local land use decisions," Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 813 (9th Cir.2007), while still reducing " the impediments imposed by local governments upon the installation of facilities for wireless communications, such as antenna towers," Abrams, 544 U.S. at 115, 125 S.Ct. 1453.
As suggested by the title of § 332(c)(7), an understanding of the mechanics of local governments' zoning and land use decision making is necessary to discern the section's preemptive scope. See Kay, 504 F.3d at 813. In general, local governmental authorities, such as cities and counties, establish local zoning boards, planning commissions, or analogous entities to promulgate and enforce zoning and other land use restrictions within their jurisdiction. Patrick J. Rohan, Zoning and Land Use Controls § 1.02- (2012); Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law § 3.1 (3d ed.2013); see also Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 176, 180-81, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Local land use decisions fall into two general categories. See Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (contrasting " [t]he sort of land use regulations" that " involved essentially legislative determinations classifying entire areas of the city," with a city's " adjudicative decision to condition petitioner's application for a building permit on an individual parcel" ). First, local land use authorities may recommend or enact plans and zoning maps that affect the classification and use of property generally. Juergensmeyer & Roberts, supra, at § 2:7. This is primarily a legislative function. See Rohan, supra, at § 1.03[a]; Cal. Gov't Code § 65301.5 (classifying the adoption of a general plan as a legislative act). Second, local land use authorities may exercise an adjudicative function that involves applying land use rules to individual property owners, including the consideration of requests for waivers and variances. Juergensmeyer & Roberts, supra, at §§ 5:1, 5:3.
In addressing land use regulations and decisions related to the installation of wireless communication facilities, the TCA closely tracks the typical division of land use decision making. See Kay, 504 F.3d at 814 (noting that the text used in § 332(c)(7) " closely mirrors" state laws relating to zoning and permitting agency decisions). Congress began by enunciating a general principle of preservation of local authority:
Except as provided in this paragraph [§ 332(c)(7) ] nothing in this chapter[ ]
shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and ...