Federal District Court in California Grants AT&T Wireless Summary Judgment on Section 332 and Constitutional Challenges to a City's Denial of a Conditional Use Permit for a Stealth Wireless Facility

On Feb. 4, 2003, Judge Jeffrey T. Miller of the United States District Court for the Southern District of California granted summary judgment to AT&T Wireless ("ATTW"), upholding ATTW’s challenge to the denial by the City of Carlsbad, Calif., of a conditional use permit ("CUP") for a stealth wireless facility in a residential setting. In the same order the judge denied Carlsbad’s cross-motions for summary judgment. CRB represented ATTW before the Carlsbad City Council and in the federal district court.

ATTW argued that the denial violated Section 332 of the Communications Act of 1934, as amended (the "Act"), as well as the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The Court specifically held that the City's denial of the CUP was not based on substantial evidence as required by the Act, and further ruled that the denial was impermissibly based on concerns over the health effects of radio frequency ("RF") emissions—an area that the Act expressly bans cities from considering. The Court was not persuaded by the technical "expert" whom the City retained to argue that there were adequate alternative sites available to ATTW. Indeed, in addition to finding the City's expert not "reliable," in an earlier ruling, the Court excluded his Final Report as a sanction for violating the discovery rules and also awarded ATTW attorneys' fees as an additional sanction. Finally, the Court also ordered the City to issue a CUP for the proposed site, noting that "remanding the decision [back to the City Council without an order to grant the CUP] would allow the city to benefit from its unlawful decision and would frustrate the purpose of the [Act] that actions brought under it be decided on an expedited basis."


The case arises from Carlsbad’s denial of a CUP for a residential wireless site that was designed to be concealed in three chimneys and a garage extension at a house located at 7512 Cadencia. ATTW's use of chimneys to blend antennas into the house architecture was modeled after a Cingular PCS site located on the same street and two doors down from 7512 Cadencia. The City had approved the Cingular site in April 2000 without controversy. ATTW chose the Cadencia site only after the City rejected its initial application for placement of antennas on a San Diego Gas and Electric utility tower, an application opposed by residents on the basis of RF-related concerns. ATTW's Cadencia application met the same vigorous opposition at the Planning Commission and City Council and for the same reasons. Residents spoke openly about the health effects of RF emissions. They coined the phrase “Antenna Alley,” a euphemism on which the City tried to capitalize in its denial resolution. One resident who organized the opposition testified that the residents’ fear of RF was "palpable" and when later pressed by the Mayor to explain her aesthetic concerns, her only comment was that she objected to the "philosophical aesthetics" of the site.

On appeal to the City Council, ATTW battled to a split vote of 2-2, with the mayor withholding his vote until he was able to obtain an RF emissions report from Cingular about the RF exposure levels of the adjacent wireless facility. If the report came back favorable (i.e., showing that the site was in compliance with FCC exposure standards), the mayor said he would support the ATTW CUP. The Cingular report came back a few weeks later showing that the RF emissions from that site amounted to 1 percent of the FCC’s maximum permitted exposure levels. Nevertheless, facing a room packed with residents and signs saying "Protect Our Children," the mayor voted against the ATTW CUP. In so doing he admitted on the record that he was voting against the site even though federal law prohibited the City from denying the CUP based on RF.

Summary Judgment Order

The Court placed the burden of proof on ATTW to support its claims under Section 332. Even so, it granted summary judgment in ATTW’s favor on all three of ATTW's Section 332 claims. Specifically, the Court agreed that the City's denial was based impermissibly on concerns about RF emissions (Section 332(c)(7)(B)(iv)) and that the denial was not supported by substantial evidence in the administrative record (Section 332(c)(7)(B)(iii)). It analyzed these two claims together, finding that the administrative record did not support any legitimate basis for denial and that the actual basis for denial, despite the City's representations to the contrary, was the fear of health effects of RF emissions. The Court broke important new ground on the law concerning RF emissions by noting that even health concerns relied upon indirectly cannot form the basis for denial of a CUP under Section 332. Although it did not use the word "pretext," this analysis clearly supports an argument that if evidence that does not appear to be RF-related in fact is a cover for RF-related health concerns, it cannot support a denial.

The Court's decision also advances the law on substantial evidence under Section 332. The city asserted, unsuccessfully, that the Court should limit its review of the record to the actual denial resolution. But in addition to reviewing the denial resolution—which contained many pretextual and unsubstantiated findings—the Court cited California zoning law for the proposition that it is proper to review the transcripts of public hearings for statements made by the city council as well as oral remarks made at a public hearing in assessing the justification for zoning decisions governed by Section 332. In yet another important holding, the Court rejected the City's claim that failure to exhaust alternative locations for the site, purportedly required before and after adoption of the policy, could itself constitute a legitimate basis for denial.

Finally, the court upheld ATTW's related claims of unreasonable discrimination (Section 332(c)(7)(B)(i)(I)) and violation of the Equal Protection Clause of the 14th Amendment. The Court described the Cingular site as the "model" for ATTW's site two doors away and ruled, therefore, that there was no basis for granting the Cingular permit while denying the ATTW permit. Under the Court's Equal Protection analysis, the City acted arbitrarily and unreasonably by, inter alia, allowing residents’ concerns about health effects to govern the outcome and imposing policy requirements on ATTW's application that were not in existence when ATTW’s application was deemed complete.

Trial on the remaining counts is set to begin on March 25, 2003. The judge has requested further briefing on the issue of whether the City Council and Planning Commissioners can be held liable for monetary damages for violating ATTW's civil rights under the federal Civil Rights Act.

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