Cox Communications PCS, L.P. v. City of San Marcos

ORDER GRANTING IN PART, DENYING IN PART, PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

I. Introduction and Background

Plaintiff Cox Communications PCS, L.P., (d.b.a. Sprint PCS), (“Sprint”) is a provider of wireless telecommunications service throughout the San Diego area, including the City of San Marcos (“City”). On April 20, 2001, Sprint requested the right to use the City’s public rights-of-way to install various facilities at three sites in the City. The facilities include wireless cell devices that attach to electrical poles and boxes at the base of the poles to provide power to the wireless transmission units. On August 2, 2001, the City indicated that Sprint could not use the public rights-oL way without first obtaining a Conditional Use Permit (“CUP”).

The process for receiving a CUP from the City is contained in Title 20 of the San Marcos Municipal Code. To obtain a permit, a party must file an application with the City that includes a complete plan, description of the property, the proposed use, satisfactory evidence that the applicant will begin construction within six months of receiving the permit, and a fee of $3,476. San Marcos Municipal Code § 20.96.170. A…