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The court noted that the County’s “not a franchise” argument was recently rejected by the Ninth Circuit in Sprint Telephony PCS, L.P. The court rejected the County’s arguments that its zoning code (1) does not require a franchise, and (2) is of general applicability.
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Finally, the court found that the County’s zoning ordinance “provides unfettered discretion to County officials at multiple points in the approval process, including discretion to ultimately deny the application, the ‘ultimate cudgel’ in the preemption analysis.”
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In granting NextG’s motion for preliminary injunction, the court identified four common elements that result in preemption of a local ordinance by Section 253: “(1) a complicated application process (including reporting of financial information) and high fees (2) a public hearing on the application (3) imposition of criminal and civil sanctions for violations and (4) unfettered discretion to approve or deny the application, or revoke a permit once issued.” The court found that all of the common elements were present in the County’s zoning requirements, which required submission of a variety of detailed plans, maps, and any other information that the County might require, and put the burden on the applicant to prove such “subjective and imprecise concepts” as: “health, peace, and comfort” of area residents “use, enjoyment or valuation of property ” and “public health, safety or general welfare.” The court found that these requirements were “so burdensome and Byzantine as to erect a barrier to providing telecommunications services.” The court also found that the highly burdensome application process was complicated by two separate public hearing requirements, including one that was not codified, and by the imposition of criminal and civil sanctions. NextG filed for preliminary injunction, alleging that the County’s zoning requirements violated its federal rights and prevented it from meeting obligations requiring NextG to construct facilities for customers by specified dates. Moreover, the County did not impose the requirements on non-wireless facilities, even though located in the public rights-of-way, like NextG’s. Like many local wireless zoning ordinances, the County’s code was complicated, burdensome and highly discretionary. Because NextG’s network included antennas, the County required NextG to comply with the County zoning code. NextG uses its DAS networks to provide transport and networking to wireless carriers, empowering them to provide greater coverage and capacity. NextG is a telecommunications company that constructs Distributed Antenna Systems (DAS), which combine a fiber optic network with low power antennas located on utility or street-light poles in public rights-of-way. In doing so, the court found that the County’s zoning requirements, as applied to the deployment of wireless facilities, was preempted by Section 253(a) of the federal Communications Act and did not fall within the authority reserved to local governments under Section 253(c) to manage the public rights-of-way. (NextG) a preliminary injunction, enjoining the County of Los Angeles (the County) from enforcing its zoning requirements on NextG’s installation of wireless telecommunications facilities. In another important decision limiting the imposition of burdensome and discretionary local zoning requirements on wireless telecommunications deployment, on June 20, 2007, the United States District Court for the Central District of California granted NextG Networks of California, Inc.