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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.

Plaintiffs’ Position

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.

Court’s Analysis

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 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 Wireless 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 mandates and regulations that are protective of the wireless telecommunications industry. To illustrate, the FCC ruling issued in September 2018 interprets federal telecommunications law to strictly limit local authority over wireless facilities. That ruling has since become effective and is not affected by the outcome of this 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. 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?”

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.