The Ninth Circuit Court of Appeals decision defined the burdens of proof under the Telecommunications Act of 1996 for the parties at local land use hearings.

The Court ruled that if a wireless communications carrier provides substantial evidence that the proposed site is the least intrusive option to serve a significant gap, after providing evidence that it made a good faith search for feasible alternatives, the burden of proof shifts to the opponents/local jurisdiction.

The opponents or local jurisdiction must prove that there is a specific, feasible, less intrusive option that allows the carrier to provide service in the significant gap. If the opponents or local jurisdiction fails to meet its burden of proof, the Telecommunications Act of 1996 requires the local jurisdiction to approve the application.

The Ninth Circuit Court of Appeals reversed its own prior decision in Qwest v. City of Auburn.

The Ninth Circuit ruled that a local ordinance on its face violates the Telecommunications Act of 1996 if the ordinance actually prohibits the delivery of communications services, or has the effect of prohibiting the delivery of communications services.

The decision went on to hold that the County of San Diego’s wireless communications ordinance did not violate the Telecommunications Act of 1996 because the zoning board could exercise its discretion to approve or deny the application.

The Ninth Circuit Court of Appeals first adopted in this 2005 decision the “significant gap” test, the “least intrusive means” test, and the “multiple provider” rule under the Telecommunications Act of 1996.

The Court recognized that there is usually more than one feasible site available to serve a significant gap in coverage. The Court found that the least intrusive means standard allows for a meaningful comparison of alternative sites so the land use application process is not needlessly repeated.

The Court also interpreted the non-discrimination standard in the Telecommunications Act of 1996, which states that local jurisdictions shall not unreasonably discriminate among providers of functionally equivalent services. The Court held that local jurisdictions must evaluate the “structure, placement or cumulative impact” of a proposed facility, and compare it with approvals issued for functionally equivalent services. The Court remanded the case for further hearings on MetroPCS’ discrimination claim.

The Oregon Court of Appeals issued a significant decision for wireless communications land use proceedings under Oregon state law.

The Court held that wireless communications carriers have the right to determine the need for providing their services, and local jurisdictions do not have the authority to challenge the carriers’ determination for the need to provide the services. However, local jurisdictions may require carriers to consider different designs to accomplish their service objectives.

The Court also ruled that the “reasonable alternative site” analysis for sites on Exclusive Farm Use land is limited to a review of reasonable alternate locations for the facility. If the proposed site meets one of the six statutory standards for why it is necessary to place the communications site on EFU, land the application must be approved.