Local governments may require a permit conditioned on compatibility with aesthetic standards to install and maintain wireless communications infrastructure in the public right-of-way, the California Supreme Court held in T-Mobile West LLC v. City and County of San Francisco, No. S238001 (April 4, 2019). The court rejected a facial challenge brought by telecommunications companies to a San Francisco ordinance that requires a permit to install and operate wireless service facilities in the public right-of-way and establishes standards for aesthetic compatibility in historic districts and other areas.
Public Utilities Code Section 7901 Does Not Preempt Local Aesthetic Regulations
Public Utilities Code section 7901 grants a statewide franchise to telecommunications companies to install equipment on public roads, waters or lands in the state “in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.”
Plaintiffs argued that the San Francisco ordinance was preempted because it conflicted with the terms of Section 7901, hindered the accomplishment of the statute’s purposes and intruded into a field that had been fully occupied by the legislature. The court rejected all three theories, finding that while Section 7901 prevented local governments from requiring a franchise for a telecommunications company, it did not prevent local governments from exercising their traditional authority over land use by requiring a permit based on aesthetic or other considerations.
Conflict Preemption. The court found no conflict because it was possible to comply with both Section 7901 and local laws that required a permit on aesthetic grounds. The court explained that because Section 7901 “says nothing about the aesthetics or appearance of” telecommunications equipment, San Francisco’s ordinance regulating those features “is not inimical to the statute.”
Obstacle Preemption. The court concluded that local aesthetic regulations did not hinder the accomplishment of the purposes of Section 7901. Assuming that the purpose of Section 7901 was to encourage technological advancement in the state’s telecommunications networks, the court held that there was no indication that the Legislature intended to pursue that goal at all costs. Rather, the court reasoned, the Legislature’s inclusion of the “incommode” clause indicated that the goal of technological advancement was not paramount to all other objectives.
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