Multiple Choice:  A Local Government Can Control Wireless in its Rights-of-Way (Yes, No, It Doesn’t Matter)

Let’s go back to San Diego County where, in past issues, PlanWireless reported to you that:

·       A California Superior Court judge found that San Diego County could enforce its Wireless Telecommunications Ordinance in the right-of-way, even though Sprint PCS claimed that the Public Utilities Code in California precluded San Diego County’s right to regulate wireless in the public right-of-way.

·       Sprint then sued in federal District Court on a slightly different issue:  that the Telecommunications Act Section 253 supersedes the provisions of Section 332(c)(7).  Sprint prevailed.

·       Sprint then appealed the Superior Court ruling to the California Court of Appeals which reviewed the case without “reference to the trial court’s determination.”[1]

On June 20, 2006, the California Court of Appeals upheld the Superior Court’s decision after reviewing the facts and legislative record/intent of California Public Utilities Code Sections 7901 and 7901.1.

The Equipment Needed for Wireless is Considered Equivalent to the Equipment Needed for Landline

PlanWireless had previously agreed with San Diego County that wireless is not “telephony” as Sprint maintains.  The California Court of Appeals disagreed, saying that wireless falls under the jurisdiction of Section 7901, which clearly was written before personal wireless services were introduced as “Cellular” in 1986.

The Appeals Court said that, while Section 7901 was not amended, the definition of a telephone line was changed in the Public Utilities Code in 1951 to include “whether such communication is had with or without the use of transmission wires.”

Time, Place & Manner

Prior court decisions have held that California local governments have discretion over “when, where and how” (ministerial permit) but not “if” (discretionary permit) a telecommunications carrier can deploy in the right-of-way.  The nuance of “time, place and manner” is significant because it implies that a local government’s latitude is restricted. 

Back in 1996, the California Public Utilities Commission issued General Order 159-A, which maintained that PUC has jurisdiction over “cell siting.”  However, CPUC ceded to “local authorities the primary authority on issues relating to the right-of-way access authorized by Section 7901, including the power to process and issue discretionary permits …”

The Appeals Court found that placement of equipment in the right-of-way was not the general province or previous concern of the State of California and that, indeed, local regulation was contemplated by the Legislature.

The California Legislature enacted Section 7901.1 of the Public Utilities Code in 1995, and this is where “time, place and manner” is promulgated.  But, says the Court of Appeals, Section 7901.1 was clearly intended for the local governments to strengthen their control over “construction management issues” and not to limit or pre-empt cities and counties.

The California Court of Appeals found for San Diego County and affirmed the trial court’s finding.

Question: So, It’s Over Then?  Answer: Not By a Long Shot

Sprint still has a case pending in the Ninth Circuit of the U.S. Court of Appeals, where many of the same arguments ruled on by the State of California have been found to the contrary by the federal District Court.  And if the reader is interested in how the Ninth Circuit ruled previously on “time, place and manner,” here’s a quote from the April/May 2006 issue of PlanWireless:

“Further, Section 7901 had been amended years ago by Section 7901.1

to determine the extent of local regulatory authority under § 7901.1: first, the breadth of ‘time, place, and manner,’ and second, the meaning of ‘are accessed’.

The City of La Cañada Flintridge hoped that aesthetic considerations fell under the ‘time, place and manner’ provision but the three-judge panel felt otherwise:

While the authority to restrict building based on ‘time, place, and manner’ gives cities more authority to determine what constitutes a reasonable use of the road, this language does not seem to enhance greatly the City’s regulatory latitude—certainly not to the extent necessary to engage in aesthetic regulation.”

The preceding is from the Sprint PCS v. City of La Cañada Flintridge decision by the Ninth Circuit of the U.S. Court of Appeals.

And here is what the California Court of Appeals said about the Ninth Circuit’s decision:

In that case, the court’s published opinion peremptorily states that any analogous local ordinance regulating cellular tower installations in a ROW is preempted by State law … but the precise basis or rationale for this statement is shrouded.  For the reasons articulated below, we believe the federal ipse dixit is wrong and should not be followed.

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Phone: (415) 435-9214
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