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Right-of-Way May Be At Risk
California Cities & Counties: Your Rights-of-Way May Be At Risk
Since 1997, Kreines & Kreines, Inc. has been telling its clients to consider
putting cell sites in the right-of-way and collect the revenue. Now the wireless
carriers want their facilities in the right-of-way whether the city or county
wants it or not.
In at least three lawsuits in the state (all in Southern California), the
carriers have claimed an unfettered right to do what they want in the
right-of-way. In one lawsuit, Sprint v. City of Palos Verdes Estates, the
carrier has already won (not a decision, but a finding). In this article, PlanWireless will discuss Sprint’s arguments and Kreines & Kreines, Inc.’s
comments on those arguments, keeping in mind that Kreines & Kreines, Inc. is a
planning consulting firm, not a law firm.
Sprint’s first cause of action is:
the Denials
Were Not
Supported by Substantial
Evidence.
This may be true. A city can’t just say “no” to an application for a personal
wireless service facility because its ordinance is contravened. The
Telecommunications Act of 1996 requires substantial evidence and, just because
the ordinance was not complied with does not constitute substantial evidence.
Kreines & Kreines, Inc. has not seen the City of Palos Verdes Estates ordinance,
but the facts were not disputed:
• Sprint proposed two new cell sites in the right-of-way.
• In both cases, the City’s Director of Public Works denied the applications.
• In both cases, the reasons for denial were “aesthetic concerns.”
• In one case, Sprint alleged it had a gap of “no coverage”; while, in both
cases, Sprint was required to move from an “obsolete technology” to a newer
system.
Kreines & Kreines, Inc. advises its clients
not to use aesthetics as grounds for denial. We also do not believe that claims
of “gaps,” “no coverage” or “obsolete technology” constitute substantial
evidence. Kreines & Kreines, Inc. does not believe that it is a city’s
responsibility to zone in order to solve technological problems.
Sprint’s second cause of action is: The Denials Constitute a Prohibition of
Service
Sprint claims that the City prohibited service because Sprint had a “significant
gap.” However, “significant gap” has been used in many Circuit Court decisions
before. The concept was formally stated in APT Pittsburgh Limited Partnership v.
Penn Township, Butler County of Pennsylvania, as follows:
First, the provider must show that its facility will fill an existing
significant gap in the ability of remote users to access the national telephone
network ... The provider’s showing on this issue will thus have to include
evidence that the area the new facility will serve is not already served by
another provider.
Second, the provider applicant must also show that the manner in which it
proposes to fill the significant gap in service is the least intrusive on the
values that the denial sought to serve.
That is the way three Circuit Courts see it (Second, Third and Fourth).
Evidently, the Ninth Circuit sees it differently, as discussed in the last
article in this issue.
There does not appear to be a significant gap in
Palos Verdes Estates and, just
because Sprint has a problem, Sprint shouldn’t have a cause of action for a
“significant gap.”
Sprint’s third cause of action is: The City’s Wireless Ordinance Conflicts With
– and Is Therefore Preempted by – Section 253 of the Telecom Act
This is where local governments should take note: Section 253 of the
Telecommunications Act has five sub-sections. Section 253(a) reads as follows:
IN GENERAL.-No State or local statute or regulation, or other State or local
legal requirement, may prohibit or have the effect of prohibiting the ability of
any entity to provide any interstate or intrastate telecommunications service.
What PlanWireless has always subscribed to is Section 704 of the
Telecommunications Act, which amended Section 332(c), Sub-section (7)(A) that
reads:
Preservation of Local Zoning Authority-
(A) General Authority-Except as provided in this paragraph, nothing in this Act
shall limit or affect the authority of a State or local government or
instrumentality thereof over decisions regarding the placement, construction,
and modification of personal wireless service facilities.
Industry representatives read this sub-section differently, alleging that
332(c(7)(A) is indeed over-arching, except when it comes to Section 253(a) and
the right-of-way. Then, the industry argues, any attempt to zone that regulates
the industry (interpreted by the industry as a “barrier”) is trumped by Section
253(a).
PlanWireless believes the opposite: The Telecommunications Act informs the
reader that zoning of personal wireless service facilities should trump Section
253(a), with special attention given to the phrase “… nothing in this Act shall
limit the authority of a State or local government …”
The value of the finding in Palos Verdes Estates is a warning to other cities
and counties, particularly in California: read Section 253(a) and Section
332(c)(7)(A) yourself and decide.
Conclusion
Deployment in the right-of-way is becoming more common, particularly in Southern
California. Cities and counties that don’t specifically plan and zone for this
type of deployment may lose, just as Palos Verdes Estates did in the case
outlined above.
PlanWireless believes that cities and counties should not prohibit personal
wireless service facilities in the right-of-way. Instead, they should be
permitted by zoning the right-of-way the way the local government wants them.
Kreines & Kreines, Inc. is preparing a Wireless Master Plan for a city in
Southern California. The approach taken there is to meet the issue of
right-of-way deployment head-on so that the City is prepared. If your city or
county wants to know more about this approach, please contact Kreines & Kreines,
Inc.
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