3 Cal. App. 5th 334
Cal. Ct. App.2016Background
- In 2011 San Francisco enacted a Wireless Ordinance requiring site-specific permits before installing or modifying wireless facilities (antennas, enclosures, power supplies) on existing utility poles in the public right-of-way; DPW adopted implementing rules.
- The Ordinance established size-based tiers and location-based aesthetic standards; Tier II/III approvals required aesthetic compatibility findings and public notice/hearing procedures for larger installations.
- Plaintiffs (T‑Mobile, Crown Castle, ExteNet), treated as "telephone corporations," challenged the Ordinance seeking declaratory and injunctive relief, asserting state-law preemption under Pub. Util. Code §§ 7901 and 7901.1 and other claims; the trial court found aesthetics-based conditions not preempted but struck certain modification provisions under federal law (§ 6409).
- The City amended the Ordinance postjudgment but retained aesthetics-based review; the appeal focuses on whether the Ordinance is facially preempted by §§ 7901/7901.1 and whether § 7901.1’s equivalence requirement invalidates the Ordinance.
- The trial court and this Court concluded the ordinance does not facially conflict with or is implicitly preempted by §§ 7901/7901.1 because (1) "incommode" can reasonably include aesthetic inconvenience to public use of rights-of-way, and (2) § 7901.1 addresses temporary construction access and does not bar site-by-site aesthetic regulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 7901 impliedly preempts local aesthetics-based permit conditions for telephone lines in the public right-of-way | § 7901 grants a statewide franchise to install lines and limits local power to physical, travel‑related obstruction only; aesthetics regulation is preempted | The franchise is limited; local police power and § 7901.1 preserve municipalities’ reasonable control (including aesthetics) over time, place, manner of installation | Held: No facial implied preemption; "incommode" reasonably includes aesthetic/inconvenience impacts and municipalities may condition permits on aesthetics (as‑applied challenges remain available) |
| Whether § 7901.1, subdivision (b) (equivalent treatment to all entities) preempts ordinance because only wireless providers face site‑specific permitting | § 7901.1 requires equivalent treatment of all entities accessing the right‑of‑way, so singling out wireless providers conflicts with state law | § 7901.1 was intended to address temporary construction access/management; equivalence applies to construction access permits, not permanent siting/aesthetic criteria | Held: No facial conflict; § 7901.1 concerns temporary construction access and does not facially invalidate San Francisco’s aesthetics‑based siting review |
| Whether § 7901 grants telephone corporations an absolute right to install facilities without any discretionary local permitting | Franchise confers unqualified right to install lines without discretionary local approvals | Franchise is limited by the statutory "incommode" condition and not a surrender of local police power to regulate location, manner, aesthetics | Held: § 7901 is a limited franchise; it does not divest cities of constitutionally reserved police power to impose reasonable, aesthetics‑based conditions on siting |
Key Cases Cited
- Pacific Tel. & Tel. Co. v. City & County of San Francisco, 51 Cal.2d 766 (Cal. 1959) (state franchise under former Civ. Code § 536/§ 7901 limits cities from excluding telephone lines but contemplates local control over location and manner)
- County of Los Angeles v. Southern Cal. Tel. Co., 32 Cal.2d 378 (Cal. 1948) (§ 7901 grants limited right to use highways only as necessary for public service)
- Western Union Tel. Co. v. Visalia, 149 Cal. 744 (Cal. 1906) (local police power can regulate placement to prevent unreasonable obstruction of travel)
- Pacific Tel. & Tel. Co. v. City & County of San Francisco (Pacific Telephone II), 197 Cal.App.2d 133 (Cal. Ct. App.) (state concern in communications leaves municipalities narrower power to control location and manner of installation)
- Sprint PCS Assets v. City of Palos Verdes Estates, 583 F.3d 716 (9th Cir. 2009) (federal appellate decision persuasive here: "incommode" includes inconvenience/ aesthetic impacts; § 7901.1 bolsters cities’ construction management authority)