The wireless industry was dealt a legal setback late last week by the Ninth Circuit Court of Appeals, which overturned previous district and appeals court rulings that prohibited local zoning authorities in San Diego County, California from limiting the design, placement, and size of mobile phone transmission towers. Addressing a petition for rehearing brought by San Diego County in a case involving Sprint Nextel, the en banc opinion reverses findings reached by the same court last year in which a three-judge panel concluded that zoning guidelines covering wireless cell sites in the county contravene Section 253(a) of the 1996 Telecommunications Act. Under Section 253(a), the federal government may preempt any local government regulation that effectively bars the entry of telecommunications providers into the local market. Upholding the district court last year, the appeals court relied upon a 2001 decree handed down by the Ninth Circuit that concerns a zoning dispute pitting the city of Auburn, Washington against Qwest Communications. In that case, the Ninth Circuit determined that wireless permit rules enacted by Auburn officials contradicted Section 253(a) because they “may” have had the effect of prohibiting the provision of telecom service. In reversing itself last week, however, the Ninth Circuit pointed to a recent pronouncement of the Eighth Circuit Court in St. Louis rejecting the “Auburn” standard on grounds that a plaintiff must show that a local ordinance actually prohibits market entry instead of the mere possibility that it may bar such entry. Admitting, that “our previous interpretation of the word ‘may’ as meaning ‘might possibly’ is incorrect,” the en banc panel decreed: “we therefore overrule Auburn and join the Eighth Circuit in holding that a plaintiff suing a municipality under Section 253(a) must show actual or effective prohibition.” As such, the court determined that none of the requirements imposed by San Diego authorities “individually or in combination prohibits the construction of sufficient facilities to provide wireless services.”