9th Circuit on Cell Phone Towers and Local Powers

The Ninth Circuit ruled on Tuesday that Sprint and other wireless companies had power under the California Utilities Code to install wireless equipment (cell phone transmitters and antenna) on power poles along residential streets. The City of La Canada didn't want to allow that in residential areas, denying needed permits for this form of above-ground construction in rights of way based on aesthetic grounds.  In Spring PCS v. LaCanada Flintridge (05-55014) the appellate court sided with the cellphone company. 

The court first considered the requirement of the Federal Telecommunications Act  that permit denials be based on substantial evidence (47 USC 332(c)(7)(B)(iii) states that "[a]ny decision by a State or local government or instrumentality therof to deny a request to place, construct, or modify personal wireless service facilities shall be be writing and uspported by substantial evidence contained in a written record."  The substantial evidence requirement has been applied "in the context of state and local law," and has not been read to limit the application of local land use law. 

The California Public Utililities Act (section 7901) states that:  "Telegraph or telephone corporation smay 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, posts, piers, or abutments for supporting the insulators, wires, 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 navication of the waters."  Section 7901.1(a) (added in 1991) states that "It is the intent of the Legislature, consistent with Section 7901, that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed."

Article XI, section 7 of the California Constitution states that a "county or city may make and enforce within its limits all local, police, sanitary,and other ordinances and regulations not in conflict with the general laws."  The court considered whether the Utilities Code provision preempted local powers under this state constitutional home rule provision.

Focusing on the language from the Utilities Code that specified that telecomm construction could not "incommode" the public use of the highway, the court said that the statute should be read as addressing the "function" of the road rather than its enjoyment.  It then turned to the "time, place, and manner" language added in 1991.  The court concluded that this reference gives more authority to determine what constitutes a reasonable use of the road, but does not confer authority to engage in aesthetic regulation (rejecting the city's claim that references to the "manner" of use should be seen to encompass local authority). The court also emphased the reference to how roads "are accessed" as included in the 1991 amendment, and stressed that the language meant what it said--how roads "are accessed" does not refer to how they "appear." 

The court also rejected the city's argument that the reasoning of Aegerter v. City of Delafiel, 174 F.3d 886 (7th Cir. 1999) controlled (in that case the court had ruled that "Nothing in the Telecommunications Act forbids local authorities from applying general and nondiscrminatory standards dervied from their zoning codes, and we note that aethetic harmony is a prominent goal underlying almost every such code." In the court's view "whether aesthetic evidence can be used to support a permit denial in the abstract is not at issue--the issue is simply whether a city can consider such evidence consistent with California law" (that is, the Utilities Code).

The court next considered section 332(c)(7)(A) of the Telecom Act which states that "[e]xcept as provided in this paragraph, nothing in this Chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regard the placement, construction, and modification of personal wireless service facilities."   The Court said that "If the local ordinance is valid under the Telecom Act, despite being invalid under state law... then the Telecom Act effectively provides a measure of sovereign authority to cities, which their own state constitutions and statutes deny them" (a notion that had played a central role in Nixon v. Missouri Municipal League).  The court then reasoned that the statutory language did not confer authority at the local level but instead had addressed "State or local government" power, and regarded local authority as preempted under the court's reading of the Public Utility law.

Since, in the court's view, the city had acted beyond its power, any evidence in support of its ordinance was for naught.

The Los Angeles Times has a good piece placing the California case in perspective. citing disputes in Minnesota, New York and Delaware and suggesting that there will be more litigation to come.  Some forward-looking cities (at least some of the best here in NC) have been working their way through difficulties like this by getting wireless companies to put their towers inside church steeples. 

It's interesting to see the fairly well-established principal that aesthetics can be addressed under zoning law put at risk in the cell tower context.  The court's reading of the California Public Utilities law seems somewhat stretched to this reader on the other side of the country.  It's likely that other states' Public Utilities statutes are equally ambiguous and that the issue will come up again elsewhere.  The California municipalities apparently haven't decided whether to file an appeal and seek U.S. Supreme Court review.