T-Mobile v. City and Co. San Francisco, A144252M

Background

In 2011 San Francisco enacted a Wireless Ordinance requiring site‑specific permits to install or modify "Personal Wireless Service Facilities" (antennas and related equipment) in the public right‑of‑way and imposed aesthetic compatibility standards for permit approval.
Plaintiffs (T‑Mobile, Crown Castle, ExteNet) are "telephone corporations" that install wireless equipment on existing utility poles and challenged the Ordinance as preempted by state law.
Plaintiffs alleged the Ordinance conflicts with Pub. Util. Code § 7901 (state franchise right to place telephone lines so as not to “incommode” public use) and § 7901.1 (municipal control over time/place/manner of access must be applied equivalently).
The trial court held parts of the Ordinance requiring findings of technological/economic necessity were preempted, but aesthetics‑based permit conditions were not; Plaintiffs won on a separate federal §6409 issue.
On appeal the Court of Appeal affirmed: it construed "incommode" broadly to include aesthetic inconvenience, found §§ 7901/7901.1 do not impliedly preempt local aesthetic regulation of siting, and held §7901.1 governs temporary construction access (time/place/manner) rather than permanently limiting local siting authority.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §§ 7901 and 7901.1 impliedly preempt the Ordinance's aesthetics‑based permit conditions	§7901 grants a statewide right to place lines free of discretionary local aesthetic regulation; "incommode" means only physical obstruction	Local police power and §7901.1 preserve municipalities’ reasonable control; "incommode" includes inconvenience/disturbance (aesthetics)	Not preempted — "incommode" construed broadly; local aesthetic conditions permissible on a site‑by‑site basis
Whether §7901.1(b)’s requirement of equivalent treatment of "all entities" invalidates singling out wireless providers for site permits	§7901.1 defines and limits local authority and requires equivalent treatment of all right‑of‑way users, so singling out wireless is preemptive	§7901.1 addresses temporary construction access (time/place/manner); equivalence applies to construction management (temporary permits), not permanent siting/aesthetic review	No facial conflict — §7901.1 focused on construction access; record showed equivalent temporary construction permitting in practice
Proper meaning of "incommode the public use" in §7901	Narrow: only unreasonable physical obstruction of travel	Broad: includes inconvenience, discomfort, interference with non‑transport uses (aesthetic/public enjoyment)	Broad meaning adopted — public use not limited to travel; aesthetics can in some cases "incommode" public use
Scope of facial challenge	Plaintiffs must show the Ordinance is invalid in all or most applications (heavy burden)	Ordinance can be applied permissibly in many contexts; Plaintiff's hypotheticals insufficient	Facial challenge fails — plaintiffs did not meet the heavy burden

Key Cases Cited

Pacific Tel. & Tel. Co. v. City & County of San Francisco, 51 Cal.2d 766 (Cal. 1959) (state franchise to use streets does not preclude municipal permitting requirements; cities may control location/manner)
Palos Verdes Estates v. Goldstein, 583 F.3d 716 (9th Cir. 2009) (federal court adopts broad construction of "incommode," allowing local aesthetics‑based permit denial)
Pacific Tel. & Tel. Co. v. City & County of San Francisco, 197 Cal.App.2d 133 (Cal. Ct. App.) (discusses limits of "incommode" language and city control over location and manner)
Arcadia Unified Sch. Dist. v. State Dept. of Education, 2 Cal.4th 251 (Cal. 1992) (facial‑challenge standard: challenger must show statute inevitably conflicts with constitutional prohibitions)
City of Huntington Beach v. Public Utilities Com., 214 Cal.App.4th 566 (Cal. Ct. App.) (statutory scheme contemplates coexistence of state franchise rights and municipal control over location/manner)