In T-Mobile West LLC v. City and County of San Francisco, published April 4, 2019, the California Supreme Court affirmed trial and appellate court rulings denying the plaintiff cell phone carrier's facial challenge to a city ordinance conditioning permits for installation of wireless carrier lines and equipment in public rights of ways on aesthetic grounds. The carrier contended that local regulation of right-of-way equipment was preempted by Public Utilities Code sections 7901 and 7901.1. Section 7901 permits telephone companies to install lines and equipment in public rights of way in such manner and at such points as will not "incommode the public use" of the rights of way. Section 7901.1 sets forth a legislative intent to preserve municipalities' right to control the time, place, and manner in which roads, highways, and waterways are "accessed," but requires that the control exercised be applied to all entities in an equivalent manner. The plaintiff contended that section 7901 preempted local regulation, and that the ordinance violated 7901.1 by treating wireless carriers different from other telephone companies.
The Supreme Court rejected both arguments. The court ruled that municipalities have the police power to regulate based on aesthetics, and that section 7901 preempted that power only if it evinced an intent to take the power away. Section 7901 grants telephone companies a statewide franchise to operate, and preempts requirements for local franchises. But the ordinance concerns permits, rather than franchises. The court also rejected the interpretation of "incommode" to include only obstructing travel. There are many uses of rights of way beyond merely traveling them. The court applied the various tests for preemption, and concluded that local regulation of aesthetics was not preempted under any of them. The court rejected the argument on section 7901.1 by interpreting the term "access" to apply only to construction of telephone lines and equipment. The municipality provides temporary access permits to both wireless and non-wireless telephone carriers to construct equipment, without regard to aesthetics. It regulates only wireless carriers' equipment based on aesthetics, but only for ongoing maintenance and occupation of equipment in rights of way. The municipality therefore does not violate the statute by treating wireless companies differently.
The Supreme Court noted that an earlier Ninth Circuit case, Sprint PCS Assets v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, reached the same result in an as-applied challenge to aesthetic regulation; and that under that case a wireless carrier has both state and federal remedies for local regulatory decisions that are unduly onerous or delayed. (Pollak, Vida and Barer's attorneys were among the counsel for the city in the Sprint case.)
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