Posted by: Patricia Salkin | April 14, 2019

CA Supreme Court Upholds Wireless Service Facilities Ordinance Under State Right of Way Law

This post was authored by Amy Lavine, Esq.

The California Supreme Court upheld aesthetic regulations for wireless equipment installed in public rights of way in a case decided in April. The court concluded that local aesthetic standards were permitted under a state statute pertaining to the installation of telephone equipment along public roads and rejected the wireless companies preemption claim.

A San Francisco ordinance adopted in 2011 required companies seeking to install personal wireless service facilities in public rights of way to obtain a permit and comply with various aesthetic standards. T-Mobile and several other telecommunications companies challenged the ordinance under a provision of the California Public Utilities Code that allowed telephone corporations to install equipment in public rights of way in a manner not “incommod[ing] the public use of the road.”

The wireless companies argued that the statute prohibited local governments from restricting the location of telephone equipment along public roads and that the exception in the incommode clause didn’t contemplate the type of aesthetic standards included in the city’s ordinance. But the court explained that the question of preemption “is not whether the incommode clause can be read to permit the City’s exercise of [its police] power under the Ordinance. Rather, it is whether section 7901 divests the City of that power.” The court also disagreed with the wireless companies’ narrow interpretation of the incommode clause, noting that “the word ‘incommode’ means ‘to give inconvenience or distress to: disturb.'” As such, the right to install equipment along public roads could be restricted to prevent various disturbances to the use and enjoyment of public roads, not just to prevent obstructions to travel.

The court rejected the wireless companies’ conflict preemption claim for similar reasons, as the statute didn’t address aesthetics or prohibit local governments from requiring a permit. Nor did the statute occupy the field, as it didn’t impose comprehensive regulations on telephone equipment or create a general regulatory scheme. Finally, the court concluded that obstacle preemption was inapplicable because the plaintiffs merely alleged that ordinance might hinder the statute’s intent to encourage the development of a statewide telephone network. The statute, moreover, did not have the goal of promoting telephone equipment above all other interests, as evidenced by its inclusion of the incommode clause.

The court also briefly noted that its interpretation was consistent with the Public Utility Commission’s administration of the statute, which allowed local governments to impose restrictions on the location and design of telephone equipment. As the court explained, “generally the [Public Utility Commission] will not object to municipalities dictating alternate locations based on local impacts, but it will step in if statewide goals such as ‘high quality, reliable and widespread cellular services to state residents’ are threatened. Contrary to plaintiffs’ view of the respective spheres of state and local authority, the [Public Utility Commission’s] approach does not restrict municipalities to judging only whether a requested permit would impede traffic.”

The statute also required siting regulations for telephone equipment to “be applied to all entities in an equivalent manner,” and the plaintiffs contended that the city’s aesthetic standards violated this provision to the extent that they singled out wireless providers from other telephone corporations. However, the statute’s legislative history indicated that this provision was only intended to apply to temporary access to public roads for construction purposes, and because the ordinance treated all telephone corporations equally in this respect the court found that there was no violation.

 

For additional background about this case and some of the broader issues related to local restrictions on 5G wireless installations, take a look this CityLab article, Communities Are Fighting 5G, Permit by Permit.

 

T-Mobile West LLC v. City and County of San Francisco, 6 Cal. 5th 1107 (4/4/19).


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