The California Supreme Court just joined the fray in the battle over the placement of small cells and other wireless equipment in public rights-of-ways. Currently, there are numerous lawsuits challenging the FCC ruling that wireless carriers can put their devices anywhere in the public rights-of-way. The California lawsuit preceded that order and was asking if a City has the right to dictate the appearance of wireless electronics.
We’ve recently seen wireless carriers hanging some fairly hideous devices on poles. The FCC order allows them to hang devices as large as 28 cubic feet, and that’s large enough to hang devices that sprawl across the sightlines on poles. Cities look at some of the early examples of devices on poles and are fearful of the proliferation of similar devices as each large wireless carrier and others begin hanging small cells and 5G fixed wireless loop devices.
The original suit came from T-Mobile that claimed that San Francisco had no authority to set aesthetics requirements for wireless devices. It is an interesting challenge because government entities have been dictating aesthetics requirements for years – such as cell sites one sees all over Florida that are disguised to look like palm trees – but which never do.
My guess is that T-Mobile has been emboldened by the recent federal law that guarantees wireless carriers access to utility poles, light poles and other locations inside of public rights-of-way. The FCC order effectively tells municipalities that they can’t reject requests to place devices and I’m guessing T-Mobile hoped that meant that cities had no authority over them.
T-Mobile relied on language in section 7901 of the California public utilities code:
Telegraph or telephone 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, 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 navigation of the waters. (I must admit that one of the reasons I like to read legal cases is the language used in laws. This one uses the term incommode which means to inconvenience or impede.)
T-Mobile interpreted that law to mean that they have the right to construct facilities as long as they don’t obstruct the transmission path. They further argued that San Francisco could not regulate anything that is not specifically allowed by this same language.
The courts disagreed with T-Mobile’s reading of the law. The courts said that a city has inherent local authority to determine the appropriate use of land within its jurisdiction. That authority includes the right to establish aesthetic conditions for land use. The Court said the case boiled down to whether Section 7901 somehow divested the city of that inherent authority.
The Courts also said that T-Mobile’s interpretation of the term incommode was incorrect, in that T-Mobile thought they could hang a wireless device anywhere as long as they didn’t impede public road use or the ability of other utilities to use the poles. The Courts said that incommoded generally means inconvenience and that the city could object to a pole placement if it inconvenienced the city in other ways such as generating noise, causing negative health consequences, or creating safety concerns.
While the California ruling was very specific and ruled that the City of San Francisco could require wireless carriers to meet aesthetic requirements, the ruling and the discussion in the decision can be interpreted as being directly in opposition of the FCC order that allows wireless carriers to place small cells anywhere they want, without city interference.
Lawsuits generally rely on precedents and judges often consider rulings made in other courts on similar issues. It seems likely that this California Supreme Court ruling is going to make it into the challenges to the FCC ruling that preempted local control over small cell placement. That FCC ruling loses its teeth if cities can consider things like public safety or the safety of technicians that work on poles.
Wireless carriers are currently acting as if the FCC order is a done deal, even as it is being challenged by numerous states and cities. I’ve heard several people refer to carrier behavior as a land grab, where the carriers are grabbing connection space on poles even when they have no immediate use for them – they are getting on poles before courts might make it harder to do so. This Supreme Court ruling makes it clear that the small cell issue is far from resolved and we’re probably going to be following this in courts for at least a few more years.