The following describes and excerpts an important ruling for the city of San Francisco, and against wireless companies by the California Supreme Court re: aesthetics for Wireless Telecommunications Facilities (WTFs) of all sizes.
The decision affirms the authority and policing powers of local governments per the California Constitution to regulate utilities. This important decision goes beyond aesthetics as a local regulatory issue. The decision includes a discussion of what it means to “incommode” in Public Utilities Code Section 7901. “Incommode” is a critical word regarding use and access of the public rights-of-way (PROW), and Close Proximity Microwave Radiation Antennas (CPMRAs) installations in the PROW.
This decision is also useful for Local Ordinances by the cities and counties for so-called “Smart Meters” which are part of the Advanced Metering Infrastructure (AMI). Previously, the CPUC and utility companies have consistently claimed sole jurisdiction and denied that local governments had the authority to adopt or enforce ordinances. The California Supreme Court disagreed with this premise.
The links below include the appellate decision which was upheld by the Supreme Court and the Amicus Brief co-written by Jeffrey Melching (who helped with Burbank and Glendale’s wireless ordinance) on behalf of League of California Cities, SCAN NATOA, California State Association of Counties and International Municipal Lawyers Association
- Link to Apr 4, 2019 Bloomgberg: San Francisco Can Reject 5G Equipment It Views as Too Ugly
- Link to Apr 4, 2018 AGL Media Group: California Supreme Court Rules Against Wireless Industry
- Link to S238001 Decided Apr 4, 2019: CA Supreme Court — T-MOBILE WEST LLC et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.
- Link to LEAGUE OF CALIFORNIA CITIES, CALIFORNIA STATE ASSOCIATION OF COUNTIES, THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION, AND SCAN NATOA, INC. AMICI CURIAE BRIEF
- Link to A144252 Decided Sept 15, 2016: First Appellate District, Division Five — T-MOBILE WEST LLC et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.
Read these excerpts from the 2019 CA Supreme Court Decision:
Under the California Constitution, cities and counties “may make and enforce within [their] limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (Cal. Const., art. XI, § 7.) General laws are those that apply statewide and deal with matters of statewide concern. (Eastlick v. City of Los Angeles (1947) 29 Cal.2d 661, 665.) The “inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction’s borders.” (City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 738 (City of Riverside); see also Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151 (Big Creek Lumber).) The local police power generally includes the authority to establish aesthetic conditions for land use. (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 886; Disney v. City of Concord (2011) 194 Cal.App.4th 1410, 1416.)
The parties also agree that the franchise rights conferred are limited by the prohibition against incommoding the public use of roads, and that local governments have authority to prevent those impacts.
. . . the City has inherent local police power to determine the appropriate uses of land within its jurisdiction. That power includes the authority to establish aesthetic conditions for land use . . . We also disagree with plaintiffs’ contention that section 7901’s incommode clause limits their right to construct [telephone] lines only if the installed lines and equipment would obstruct the path of travel. Contrary to plaintiffs’ argument, the incommode clause need not be read so narrowly.
As the Court of Appeal noted, the word “ ‘incommode’ ” means “ ‘to give inconvenience or distress to: disturb.’ ” (T-Mobile West, supra, 3 Cal.App.5th at p. 351, citing Merriam-Webster Online Dict., available at http://www.merriam-webster.com/dictionary/incommode [as of April 3, 2019].)8 The Court of Appeal also quoted the definition of “incommode” from the 1828 version of Webster’s Dictionary. Under that definition, “incommode” means “ ‘[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition.’ ” (T-Mobile West, supra, 3 Cal.App.5th at p. 351, citing Webster’s Dict. 1828—online ed., available at <http://www.webstersdictionary1828.com/Dictionary/incommod e> [as of April 3, 2019].)
For our purposes, it is sufficient to state that the meaning of incommode has not changed meaningfully since section 7901’s enactment. Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. (T-Mobile West, at pp. 355-356.) For example, lines or equipment might
- generate noise,
- cause negative health consequences, or
- create safety concerns.
All these impacts could disturb public road use, or disturb its quiet enjoyment.
The “right of telephone corporations to construct telephone lines in public rights-of-way is not absolute.” (City of Huntington Beach v. Public Utilities Com. (2013) 214 Cal.App.4th 566, 590 (City of Huntington Beach).) Instead, it is a “ ‘limited right to use the highways . . . only to the extent necessary for the furnishing of services to the public’” (Ibid., quoting County of L.A. v. Southern Cal.Tel.Co. (1948) 32 Cal.2d 378, 387:…
The gist of plaintiffs’ argument is that section 7901’s purpose is to encourage technological advancement in the state’s telecommunications networks and that, because enforcement of the Ordinance could hinder that purpose, the Ordinance is preempted. But no legislation pursues its objectives at all costs. (Pension Ben. Guar. Corp. v. LTV Corp. (1990) 496 U.S. 633, 646-647.) Moreover, the Legislature made clear that the goal of technological advancement is not paramount to all others by including the incommode clause in section 7901, thereby leaving room for local regulation of telephone line installation.
The state Constitution vests principal regulatory authority over utilities with the PUC, but carves out an ongoing area of municipal control. (Cal. Const., art. XII, § 8.) A company seeking to build under section 7901 must approach the PUC and obtain a certificate of public necessity. (§ 1001; see City of Huntington Beach, supra, 214 Cal.App.4th at p. 585.) The certificate is not alone sufficient; a utility will still be subject to local control in carrying out the construction.
Municipalities may surrender to the PUC regulation of a utility’s relations with its customers (§ 2901), but they are forbidden from yielding to the PUC their police powers to protect the public from the adverse impacts of utilities operations (§ 2902). Consistent with these statutes, the PUC’s default policy is one of deference to municipalities in matters concerning the design and location of wireless facilities. In a 1996 opinion adopting the general order governing wireless facility construction, the PUC states the general order “recognize[s] that primary authority regarding cell siting issues should continue to be deferred to local authorities.
Footnote 13: Among the PUC’s express priorities regarding wireless facility construction is that “the public health, safety, welfare, and zoning conerns of local government are addressed.” (General Order 159A, supra, at p. 3)
Plaintiffs argue our construction of section 7901, and a decision upholding the City’s authority to enforce the Ordinance, will “hinder the roll-out of advanced services needed to upgrade networks [and] promote universal broadband” and will “stymie the deployment of 5G networks, leaving California unable to meet the growing need for wireless capacity created by the proliferation of . . . connected devices.”
This argument is premised on a hypothetical future harm that is not cognizable in a facial challenge. (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180; see also Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267.) (p. 22) Under section 7901.1, cities would be able to “plan maintenance programs, protect public safety, minimize public inconvenience, and ensure adherence to sound construction practices.” (Assem. Com. on Utilities and Commerce, Rep. on Sen. Bill No. 621 (1995–1996 Reg. Sess.) as amended July 7, 1995, p. 2.)
It is eminently reasonable that a local government may: (1) control the time, place, and manner of temporary access to public roads during construction of equipment facilities; and (2) regulate other, longer term impacts that might incommode public road use under Section 7901. Thus, we hold that section 7901.1 only applies to temporary access during construction and installation of telephone lines and equipment
To accept plaintiffs’ construction of section 7901.1, we would have to ignore this legislative history. (T-Mobile West, supra, 3 Cal.App.5th at p. 358.) Contrary to plaintiffs’ argument, construing section 7901.1 in this manner does not render the scheme incoherent.
It is eminently reasonable that a local government may:
(1) control the time, place, and manner of temporary access to public roads during construction of equipment facilities; and
(2) regulate other, longer term impacts that might incommode public road use under section 7901.
Thus, we hold that section 7901.1 only applies to temporary access during construction and installation of telephone lines and equipment. Because the City treats all entities similarly in that regard, there is no section 7901.1 violation.
Municipal Law — Meyers Nave Legal Alert: California Supreme Court Upholds Local Ordinance Regulating Wireless Telecommunication Facilities’ Aesthetics
On April 4, 2019, the California Supreme Court issued a unanimous decision upholding the First District Court of Appeal’s ruling that telecommunications facilities must comply with a municipal ordinance that enforces aesthetic guidelines.
The case, T-Mobile West LLC v. City and County of San Francisco, was brought by T-Mobile, Crown Castle, and ExteNet Systems against the City and County of San Francisco, seeking to invalidate San Francisco’s Wireless Ordinance. This case supports local control over telecommunications providers’ use of the public right-of-way, but, as noted below, recent developments in federal law may impose other limits on the application of land use, aesthetics, and other regulations on telecommunications providers.
In their lawsuit, plaintiffs argued that the local statute was preempted by, and in violation of, provisions of the California Public Utilities Code. The San Francisco ordinance at issue requires any entity seeking to install or modify wireless equipment in the public right-of-way to obtain a permit, and requires additional aesthetic review for specific areas within the city. For example, wireless facility installations proposed in historic districts or “excellent view” designated areas may only be approved if the planning department determines the proposed facility would not “significantly degrade” the district’s aesthetic attributes or “significantly impair” an area’s protected views.
Plaintiffs based their claims on Public Utilities Code sections 7901 and 7901.1.
- Section 7901 provides that telephone companies (which includes wireless carriers) may construct lines, poles and equipment in the public right-of-way if they do not “incommode” the public use of the right-of-way or interrupt the navigation of waters.
- Section 7901.1, on the other hand, permits local governments to exercise “reasonable control as to the time, place and manner in which roads, highways, and waterways are accessed” but requires such control be applied equally to every entity.
Plaintiffs argued that the city’s ordinance is preempted by section 7901 because it does not allow conditioning approval on aesthetic grounds. Specifically, plaintiffs argued that the term “incommode” should be read narrowly to mean obstructing the public’s path of travel and thus, aesthetic regulations are outside the scope of local authority. Likewise, the plaintiffs asserted that the city violated section 7901.1 by only targeting wireless providers with aesthetic requirements. Both the trial court and the appellate court had previously rejected the plaintiffs’ position.
On review, the California Supreme Court agreed with the lower courts.
- The Court first held that the ordinance is not preempted by section 7901 because the California legislature did not intend to deprive local governments of the ability to impose aesthetic regulations.
- Citing prior judicial decisions and California Public Utilities Commission policies, the Court reasoned that section 7901 leaves room for local regulatory action in addition to preventing road obstructions.
- In particular, the term “incommode” does not only mean obstruction to paths of travel; it could also include things like noise generation, negative health consequences, or safety concerns that may come from telecommunication deployment and could disturb the use and quiet enjoyment of the public road.
Further, cities and counties have inherent, constitutional police power to impose land use regulations including aesthetic requirements. Therefore, absent the Legislature’s clear preemptive intent as is the case here, section 7901 does not preempt San Francisco’s ordinance.
Likewise, this local statute does not violate section 7901.1. The Court observed that the city requires all utility and telephone companies, regardless of whether they are wireless carriers, to obtain temporary permits to begin construction in the public right-of-way. These permits are not subject to aesthetic review. The city only requires aesthetic approval for the subsequent, continuing occupancy and operation of wireless facilities in the right-of-way.
The Court reasoned that section 7901.1’s “reasonable” and “equally-applied” mandates only applied to the requirements to temporarily access the public right-of-way at the start of construction, but not to subsequent regulations for other long-term impacts to the public right-of-way under section 7901. Furthermore and specifically for this case, the parties had explicitly admitted that the city treats all companies equally when it comes to obtaining that initial temporary permit. Thus, no section 7901.1 violations occurred.
Implications — Scope of Local Authority
Many cities in California have been confronted with an influx of requests from carriers proposing to deploy wireless telecommunications technology in their jurisdictions, both for the purpose of expanding existing service connectivity and setting the stage for the upcoming 5G technology rollout. During this process, cities will certainly be required to make decisions regarding the type of local regulatory action that it is permitted to take in light of different state and federal protections afforded to telecommunication companies. This case clarifies local entities’ authority to enforce time, place and manner restrictions for wireless carriers deploying equipment in the public right-of-way.
Implications — FCC’s Sept. 2018 Ruling on Small Cell Deployment
Municipalities, however, should keep in mind that while this case resolves a longstanding question of the scope of local authority under California law, there still exists additional federal regulations that are protective of the wireless telecommunications industry and these regulations are being opposed in the Ninth Circuit Court of Appeals at this very moment.
The FCC ruling issued in September 2018 interprets federal telecommunications law to strictly limit local authority over wireless facilities. That ruling will become fully effective on 4/15/19 and is not affected by the outcome of this case, but will be affected by the outcome of the Ninth Circuit case.
With particular relevance to the main issue in T-Mobile West LLC v. City and County of San Francisco, the September 2018 ruling provides that local aesthetic regulations must be objective, reasonable, non-discriminatory, and published in advance, regardless of whether they apply to the public right-of-way.
In light of these recent legal developments, public entities may desire to create new or revisit existing aesthetic requirements that preserve the character of their communities while remaining objective and reasonable to comply with federal mandates.
For more information about the FCC’s September 2018 rule, please click here for Meyers Nave’s recorded webinar on “How Do Municipalities Comply with the FCC’s New Rule on Small Cell Wireless Deployment?”
How Do Municipalities Comply with the FCC’s New Rule on Small Cell Wireless Deployment?
- Rule Violation: What are the three enumerated examples, as interpreted by the FCC, of a municipal regulation that would constitute an unlawful “Effective Prohibition” of small cell service deployment and, thus, be preempted by the Telecommunications Act of 1996?
- Fees & Charges: What is the standard for determining whether a municipal fee or charge imposed on small cell infrastructure providers would be permissible based on the FCC’s interpretations of the Telecommunications Act? What “local fees” are covered by the new interpretation and what are examples of presumptively compliant “local fees” as presented by the FCC?
- Non-Fee Requirements: What non-fee provisions in a local regulation, such as aesthetics, undergrounding, and minimum spacing requirements, could operate as an effective prohibition of service pursuant to the FCC’s view?
- Shot Clocks: What are the new “shot clocks” applicable to local review of applications for wireless infrastructure installation and deployment, and what are the potential consequences if a municipality fails to act on the application during the specified time frame?
- Grandfathering: How does the FCC interpretation affect previous agreements between a municipality and a carrier or other third party involved in small cell infrastructure deployment?