|
| |
Home >
Right-of-Way >
Carrier Needs a Permit
Cell Site in the Right-of-Way? The Carrier Still Needs a Permit
In San Diego County, where strange wireless stuff happens, Sprint and Cingular
told the County, “We don’t need permits to deploy in the right-of-way. We are
public utilities and we have a right to go in the right-of-way unfettered.”
San Diego County denied that “right” and the County was sued by both carriers,
who sought a summary judgment in San Diego Superior Court.
The Motion for Summary Judgment was Denied
Sprint and Cingular claim that California’s Public Utility Code exempts them
from the San Diego County Wireless Siting Ordinance. The Superior Court Judge,
Charles Hayes, noted that personal wireless service carriers are in the business
of providing Commercial Mobile Radio Services and “are not in the business of
constructing land line.” The Judge concluded that the California Public
Utilities Code sections 7901 and 7901.1 don’t apply to personal wireless service
facilities.
Sprint and Cingular (which sued under its old name of Pacific Bell Wireless)
contended that a 2003 California Appeals Court decision protected the carriers
from regulations pertaining to cell sites. According to Judge Hayes, the
Williams case “dealt with ‘fiber optic cables’ in conduit under City streets and
not with the installation of wireless cell towers …”
What if the State’s Public Utility Code Sections Were Relevant?
Judge Hayes noted:
Even if the Public Utilities sections 7901 and 7901.1 were applicable to the
wireless cell providers vis-à-vis the County’s Wireless Siting Ordinance, Public
Utilities Code section 7901.1 provides the County with authority to regulate the
proposed location and characteristics/appearance of wireless cell phone towers
in certain residential and other areas where the towers may not be compatible
with existing uses (time, place and manner restrictions). Such requirements as
the conditional use permit and Section 6984(A) requiring that the wireless
provider identify the “geographic service area for the subject installation,
including a map showing all the applicant’s existing sites in the local service
network associated with the gap the facility is meant to close …” are directly
related to the “location” and “manner” prongs of the restrictions authorized
under section 7901.1.
The two carriers lost on all counts but have vowed to appeal.
. |
Top
of