Jim Porter: May a city regulate ugly antennas? (opinion)
This San Francisco based Court of Appeal decision balances the tension between technological advancements brought on by wireless companies and a community’s interest in maintaining aesthetics. On just about any street or highway in America we find telephone, cable, electrical, internet and wireless lines and equipment.
Where do telephone and wireless companies get the right to install and maintain poles and equipment along public roads and highways?
Power to the Corporations
So much for Power to the People. Real power in America is exemplified by Pub. Util. Code §7901, which I find unduly favorable to telephone and wireless companies.
PUC 7901: “Telegraph or telephone [including wireless] corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, post, piers, or abutments for supporting the insulators, wire, and other necessary fixtures of their lines, 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.”
The first question that comes to mind is what the heck does “incommode” mean? Perhaps something about an inconvenient commode or annoying use of a toilet.
The Webster Online Dictionary says “to give inconvenience or distress to; disturb” or “to disturb or molest in the quiet enjoyment of something … annoy, vex or harass.” Now you know if you have incommode or not.
Despite this overreaching power granted to telephone and wireless corporations, the powerful City of San Francisco passed an ordinance in 2011 regulating telecommunications equipment based in part on whether it would “diminish the City’s beauty,” i.e., aesthetics is important to tourist town San Francisco.
T-Mobile Sues City
T-Mobile West, Crown Castle and ExteNet Systems sued the City by the Bay claiming Section 7901 preempts and precludes San Francisco from injecting an aesthetics factor into the regulation of wireless equipment in public right of ways.
The carriers argued that the phrase “as not to incommode the public use of the road or highway” meant only that the equipment may not physically obstruct travel.
The City argued to the contrary; that “use of the road” also includes “concerns related to the appearance of equipment or a facility.”
The legal question was whether San Francisco could reject wireless company’s applications based on the aesthetics of wireless equipment, including poles and antenna, even if nothing is blocking or obstructing travel.
Court Favors Coit Tower
The unanimous Court of Appeals attempted to balance the powers of local government verses state-wide regulations like Section 7901.
Justice Bruiniers wrote that the public would be inconvenienced if wireless carrier equipment was placed near Coit Tower or the often photographed “Painted Ladies” (Alamo Square) or other popular attractions in the City.
In the end the Court wrote, “Nothing in section 7901 explicitly prohibits local government from conditioning the approval of a particular siting permit on aesthetic concerns. In our view, “incommode the public use” means “to unreasonably subject the public use to inconvenience or discomfort; to unreasonably trouble, annoy, molest, embarrass, inconvenience; to unreasonably hinder, impede, or obstruct the public use.”
As such the Court upheld San Francisco’s ordinance regulating the aesthetics of telephone lines and wireless telecommunications equipment in public right of ways. As long as that authority is used fairly, it seems like a reasonable regulatory restriction.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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