City

Opinion by Judge CUDAHY; Partial Concurrence and Partial Dissent by Judge GRABER.

*718 OPINION

MetroPCS brought thé instant action iii the District Court for the Northern District of California, alleging that a decision by the San Francisco Board of Supervisors denying MetroPCS permission to construct a wireless telecommunications antenna atop a city parking garage violated several provisions of the Telecommunications Act of 1996(TCA). Specifically, Me-troPCS alleged that the Board’s decision (1) was not “in writing” as required by the TCA, (2) was not supported by substantial evidence, (3) constituted unreasonable discrimination among providers of functionally equivalent wireless services, (4) prohibited or had the effect of prohibiting the provision of wireless services and (5) was improperly based on environmental, concerns .about radio frequency (RF) emissions.

Both parties moved for summary judgment, and the district court grantéd the City’s motion for summary judgment as to all claims except the prohibition claim, ruling that material questions of fact remained as to whether the Board’s decision had the effect of prohibiting the provision of personal wireless services.…

concurring in part and dissenting in part.

I agree with the majority that genuine issues of material fact remain with respect to whether the Board of Supervisors’ (Board) denial of MetroPCS’s application for a Conditional Usé Permit (CUP) to construct wireless facilities violated the anti-discrimination and anti-prohibition provisions of the Telecommunications Act of 1996(TCA), 47 U.S.C. §§ 151-615 . I write separately because the Board’s determination that the proposed facilities are unnecessary, premised on the fact that at least one other service provider serves the same area, is irreconcilable with the anti-discrimination provision of the TCA, 47 U.S.C. § 332 (c)(7)(B)(i)(II). In view of that inconsistency, the Board’s “necessity” finding cannot support its denial of Me-troPCS’s request even if substantial evidence supports that finding. I respectfully dissent from the majority’s conclusion to the contrary.

According to the majority, a reviewing court’s analysis of the reasons given by a zoning authority for denying a request to construct wireless facilities begins and ends with determining whether those reasons are authorized by local regulations and supported by evidence.…

I. BACKGROUND

This case marks yet another episode in the ongoing struggle between federal regulatory power and local administrative prerogatives — the kind of political collision that our federal system seems to invite with inescapable regularity. And as most often happens in such cases, the courts are summoned to re-strike the balance of power between the national and the local. More specifically, we are called upon to interpret sev- eral provisions of the TCA, an exegetical effort having impli- cations for Federal Communications Commission (FCC) METROPCS, INC. v. SAN FRANCISCO 2713 licensing authority, wireless telecommunications companies and municipal zoning authorities alike. The stakes of the cur- rent dispute are especially high since this case involves sev- eral important questions of law that have not yet been authoritatively addressed by this Circuit.

The basic facts of this case are not in dispute. MetroPCS is a provider of wireless telecommunications services. It is licensed by the FCC to construct and operate radio transmit- ting and receiving facilities in San Francisco, Oakland and San Jose, California (the Bay Area). On January 15, 2002, MetroPCS…