A Ninth U.S. Circuit of Appeals ruling striking down San Diego County's ordinance regulating cell phone antenna location and appearance has been set aside, and the case will be reconsidered by the court.

In March 2007, a three-judge panel of the Ninth Circuit ruled the county's ordinance violated the federal Telecommunications Act of 1996 because the ordinance's discretionary review provisions could prohibit wireless communications services. However, the court did little to explain how exactly how the ordinance ran afoul of the federal statute (see CP&DR Legal Digest, May 2007).

San Diego County and local government organizations including the National League of Cities contended that the Telecommunications Act actually preserves the local zoning authority the county was exercising. They sought an en banc hearing in which a much larger panel of Ninth Circuit judges would decide the case. Fourteen months after the original decision came down, the majority of Ninth Circuit judges voted for an en banc hearing. The larger panel may still rule for the cell phone company and could even keep the original ruling. But at this point, the three-judge panel's decision may not be cited as precedent.

Interestingly, the state Supreme Court earlier this year dropped its review of a Fourth District Court of Appeal decision upholding the San Diego County ordinance (see CP&DR Legal Digest, August 2006). The state Supreme Court said the state court case was moot because of the Ninth Circuit ruling striking down the ordinance — a ruling that is now in jeopardy.

The federal court case is Sprint Telephony PCS v. County of San Diego, No. 05-56076.