California Supreme Court Rejects T-Mobile Appeal of San Francisco Permitting Law

Justice Carol Corrigan rejected T-Mobile’s argument that San Francisco’s aesthetics law is pre-empted by California Public Utilities Code 7901, which allows telecom equipment as long as it doesn't “incommode the public use of the road or highway or interrupt the navigation of the waters.” The court also disagreed with the carrier’s other argument that the law violates Section 7901.1 requiring all entities to be treated equivalently. Chief Justice Tani Cantil-Sakauye and all five other justices concurred.

San Francisco “has inherent local police power to determine the appropriate uses of land within its jurisdiction,” including “authority to establish aesthetic conditions for land use,” Corrigan wrote. “The question is not whether the incommode clause can be read to permit the City’s exercise of power under the Ordinance. Rather, it is whether section 7901 divests the City of that power.” T-Mobile argues the section’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,” she said. “But no legislation pursues its objectives at all costs.” Neither the state law’s plain language nor its interpretation by courts and the California Public Utilities Commission supports pre-emption, the justice said. “The statute and the ordinance can operate in harmony.”

“Private companies don’t have free rein when it comes to using a public resource,” said City Attorney Dennis Herrera in a statement: San Francisco’s approach “allows for innovation and improved technology while ensuring that unsightly poles and equipment don’t mar public views of the Painted Ladies [Victorian houses] or the Golden Gate Bridge. San Francisco doesn’t prohibit this equipment from being installed. We’re simply saying make it as unobtrusive as possible.” Industry argued without evidence that the law holds back 5G, Herrera said. “Residents do not have to choose between better wireless service or managing the appearance of their streets.”

T-Mobile has “nothing to add,” a spokesperson said. ExteNet, Crown Castle, CTIA and the Wireless Infrastructure Association didn’t comment.

The carrier argued for a narrow reading of the word “incommode,” but judges supported lower courts’ broader reading. “Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use,” wrote Corrigan. “But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. … 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.”

San Francisco didn’t violate state law requiring equivalent treatment, the justice said. Legislative history shows Section 7901.1 deals only with temporary access to public rights of way during construction and installation of phone lines and equipment, and the city treats all entities similarly in that regard, she said.

The “landmark” decision “flips conventional wisdom about local authority 180 degrees,” emailed Tellus Venture Associates President Steve Blum, a consultant for California local governments. “Up until now, cities have generally assumed that state law puts strict limits on how they can manage telecoms facilities in the public right of way, and on how far they can go in regulating the appearance and other outward aspects of telecoms infrastructure. The California Supreme Court ruled instead that California cities have broad, general authority over telecoms facilities.”

“While it is not binding precedent outside the state and does not address the FCC’s small cell rules, the Court’s reasoning should be instructive: There is a significant local interest in the aesthetics of these deployments that varies by jurisdiction,” emailed NATOA General Counsel Nancy Werner. “Courts should be leery of arguments that a state statute (or federal law for that matter) would nullify or constrict local police power without clearly expressing the intent to take that extraordinary step.”

“This is a common sense decision,” emailed Best Best local government attorney Gail Karish. “The court found that the Legislature did not grant unfettered rights to use the public streets, but rather recognized there are ‘significant local interests’ in regulating use and management of public streets and the ‘goal of technological advancement is not paramount to all others.’ Unfortunately, this balanced approach has been ignored by some state and federal regulators singularly focused on winning the race to deploy 5G.”