Tag Archives: san francisco

Cities have broad authority over wireless facilities, California Supreme Court rules

by Steve Blum • , , , ,

In a landmark decision, the California Supreme Court gave cities a major victory today, ruling that the way San Francisco regulates the appearance of wireless facilities is legal, and isn’t preempted by state law or California Public Utilities Commission regulations. Its interpretation goes beyond lower court decisions and adopts a narrower view of state-level restrictions on municipal control of telecommunications infrastructure. The unanimous opinion also opened the door to further regulation of cell sites and other telecoms facilities – wired or wireless – by drawing a line between specific limits the legislature put on local oversight of construction activities, and the general ability of cities to set standards for the appearance, placement and, potentially, other aspects of wireless equipment after it’s built.

An earlier appellate court decision ruled that cities can set aesthetic standards for wireless facilities because 1. section 7901 of the California public utilities code says telecoms infrastructure can’t “incommode the public use of the road or highway”, and 2. the visual impact of ugly equipment falls within the dictionary definition of incommoding.

Today’s California Supreme Court decision endorsed that finding…

Neither the plain language of [public utilities code] section 7901 nor the manner in which it has been interpreted by courts and the PUC supports plaintiffs’ argument that the Legislature intended to preempt local regulation based on aesthetic considerations. The statute and the ordinance can operate in harmony. Section 7901 ensures that telephone companies are not required to obtain a local franchise, while the [San Francisco] Ordinance ensures that lines and equipment will not unreasonably incommode public road use.

But municipal authority goes beyond that, according to the Supreme Court. The ruling said that state law only restricts some of the broad discretion and power that cities have under the California constitution. Cities can’t effectively prohibit telecoms companies from building infrastructure or regulate their operations, but…

The Legislature has not adopted a comprehensive regulatory scheme. Instead, it has taken the limited step of guaranteeing that telephone corporations need not secure a local franchise to operate in the state or to construct local lines and equipment. Moreover, the statute leaves room for additional local action and there are significant local interests relating to road use that may vary by jurisdiction.

Nor does the authority given to the CPUC override local control or responsibilities. The commission regulates “a utility’s relations with its customers”, the decision says, but municipalities “are forbidden from yielding to the PUC their police powers to protect the public from the adverse impacts of utilities operations”…

Consistent with these statutes, the PUC’s default policy is one of deference to municipalities in matters concerning the design and location of wireless facilities. In a 1996 opinion adopting the general order governing wireless facility construction, the PUC states the general order “recognize[s] that primary authority regarding cell siting issues should continue to be deferred to local authorities… . The [PUC’s] role continues to be that of the agency of last resort, intervening only when a utility contends that local actions impede statewide goals … .” The order itself “acknowledges that local citizens and local government are often in a better position than the [PUC] to measure local impact and to identify alternative sites. Accordingly, the [PUC] will generally defer to local governments to regulate the location and design of cell sites … .”

Finally, the Supreme Court said that public utilities code section 7901.1, which puts specific limits on local control of the public right of way, only applies while construction work is going on…

It is eminently reasonable that a local government may: (1) control the time, place, and manner of temporary access to public roads during construction of equipment facilities; and (2) regulate other, longer term impacts that might incommode public road use under section 7901. Thus, we hold that section 7901.1 only applies to temporary access during construction and installation of telephone lines and equipment. Because the City treats all entities similarly in that regard, there is no section 7901.1 violation.

In other words, the requirement that all telecoms companies be treated that same only applies while facilities are being installed. Cities are free to adopt wireless-specific ordinances that apply after construction work is completed.

Bottom line: California cities can set aesthetic standards for cell sites, and have more authority over wireless and wireline infrastructure than they or telecoms companies thought. It’s a comprehensive defeat for T-Mobile, Crown Castle and Extenet, who sued the City and County of San Francisco. They’ll even have to pay San Francisco legal costs.

Although the ruling opens the door to further local regulation of wireless facilities, including stricter aesthetic standards, the extent of that discretion wasn’t defined, and there are still federal preemptions of state and local authority that could apply. But today’s decision gives California cities a green light to test those limits.

My clients are mostly California cities, all of whom are directly affected by this case. I’m not a disinterested commentator. Take it for what it’s worth.

California Supreme Court majority opinion, T-Mobile West v. City and County of San Francisco, 4 April 2019.

First District, California Court of Appeal, T-Mobile West v. City and County of San Francisco, 15 September 2016.

California Supreme Court expands local control of wireless facilities, allows cities to set aesthetic standards for cell sites

by Steve Blum • , , , ,

Tmobile small cell riverside

UPDATE here.

San Franciso’s aesthetic standards for cell sites are legal under California law. The California Supreme Court rejected an appeal by T-Mobile, Crown Castle and Extenet of lower court rulings that allowed the City and County of San Francisco to regulate the appearance of cell sites. The ruling, posted minutes ago, is here. The ruling is broader than the lower courts’ opinions, though, and appears to expand the scope for local governments to control the use of public right of ways and issue permits for wireless facilities. More to come…

Major ruling on cell site aesthetics due from California Supreme Court tomorrow

by Steve Blum • , , , ,

Tmobile small cell burlingame

UPDATE here.

The California Supreme Court is about to rule on whether California law allows cities to regulate the appearance of cell sites. It posted a notice earlier today that a decision will be published at 10am tomorrow (Thursday, 4 April 2019). Background on the case is here. The key question: does mobile infrastructure that offends local aesthetic sensibilities “incommode the public use” of the public right of way? A California appeals court said yes, it does. T-Mobile, Crown Castle and Extenet beg to differ. We’ll get the final California word tomorrow. Stay tuned.

San Francisco muni FTTP project hits the rocks

by Steve Blum • , , , ,

San Francisco’s $1.9 billion plan to build a citywide fiber to the premise system is dead. At least for now. According to a story by Joshua Sabatini in the San Francisco Examiner, temporary mayor Mark Ferrell didn’t intend to file the paperwork needed to put a tax measure on the November ballot by yesterday’s deadline (h/t to everyone who sent me the link – much appreciated). There’s no indication he changed his mind and, according to the Examiner, would-be private sector partners were told to stand down…

The Office of Contract Administration sent a June 13 letter to the three bid teams informing them of the delay. “The City and County of San Francisco has decided to further consider factors essential to the success of the project prior to issuing a Request for Proposals (RFP),” the letter said. “Given the groundbreaking nature, complexity, and cost of this project, it is important that we reduce uncertainties to the extent possible prior to issuing an RFP.”

The letter continued, “In the coming months, the City intends to research a number of factors, including how market conditions and the construction environment would affect the project.”

Ferrell iced the project because a poll showed that voter approval of a tax increase “was just short of the two-thirds needed to pass”, according to the Examiner. Perhaps. It’s also relevant that Ferrell will soon hand over the mayor’s job to London Breed, who won the job in a special election earlier this month. She hasn’t said yet what she plans to do and all Ferrell can say is that he’s leaving behind a “briefing binder”. Translation: they’re not besties.

Three teams were in the running to manage, operate and, perhaps, partly fund the project. At least two were led by local Internet service providers, Monkey Brains (with the assistance of Black and Veatch, Nokia and Zayo) and Sonic.net. The third contender is list only as “FiberGateway”. There’s no obvious broadband company that goes by that, but for what it’s worth, Altice, a mid sized cable operator with a relative handful of systems in California, uses it as a product name.

San Francisco muni FTTP short list is down to three choices

by Steve Blum • , , , ,

The City and County of San Francisco is still tight-lipped regarding details of its $2 billion fiber-to-the-premise project, but its latest cryptic update indicates that the scheduled one-on-one interviews with potential bidders are complete and the first cut was made.

Thanks to a tip from a kind reader, I checked the City’s purchasing website and found this notice, dated yesterday, 19 April 2018…

Notice of Pre-Qualified Bidders for Citywide Fiber to the Premises Network, Lit Fiber and Wi-Fi Services RFQ

The City has completed its evaluation of Citywide Fiber to the Premises Network, Lit Fiber and Wi-Fi Services RFQ. Respondent Teams that are selected and placed on the pre-qualified bidders list are not guaranteed a contract. The following Respondent Teams have been selected:

Bay City Broadband Partners
FiberGateway
Sonic Plenary SF Fiber

Protests of the Pre-Qualified Bidders for this RFQ must be received…no later than 12:00 P.M. (PST) on April 26, 2018.

Before the interviews, the City acknowledged that four groups were in the hunt. This latest list is missing Golden Gate Broadband Partners, of which no public information or even basis for speculation exists. Same story with FiberGateway, unless you count the fact that a cable operator, Altice, uses it as a brand name.

Bay City Broadband Partners is claimed by a local wireless Internet service provider, Monkey Brains, and is said to include Nokia, Zayo and Black and Veatch. As far as I know, Sonic.net hasn’t said anything publicly but it isn’t a stretch to suspect they’re leading Sonic Plenary SF Fiber.

The three remaining contenders are still a long way from getting any kind of a contract. Later this year, the City will issue a formal request for proposals, and only the three blessed “respondent teams” will be eligible to bid. Although the City indicated it would be contributing money to the project, it hasn’t said how much.

A little more light shed on San Francisco muni FTTP contenders

by Steve Blum • , , , ,

The City and County of San Francisco has released a little bit of information about the companies that are vying for a $2 billion municipal fiber to the premise (FTTP) project. (Okay, they say it’s $1.9 billion, but at this early stage in the game, the rounder and higher $2 billion figure probably describes it better).

A cryptic post buried on the City’s purchasing website says…

Notice of Shortlist of Respondent Teams selected for Oral Interviews for the Citywide Fiber to Premises Network, Lit Fiber & Wi-fi Services RFQ

The written proposal evaluation for the Citywide Fiber to Premises Network, Lit Fiber & Wi-fi Services RFQ is now complete. The following firms will be invited to the Oral Interviews: Bay City Broadband Partners, FiberGateway, Golden Gate Broadband Partners, and Sonic Plenary SF Fiber.

And that’s it. So in the absence of hard information, we can try to read the tea leaves. The only statements about the written responses to the City’s request for qualifications submitted on or before 26 March 2017 have come from Monkey Brains, a San Francisco wireless Internet service provider. In a tweet and a subsequent newspaper interview, Monkey Brains owner Rudy Rucker said that five groups submitted proposals. One of those groups – Bay City Broadband Partners – includes Monkey Brains and, according to Rucker, Black and Veatch, Zayo and Nokia.

It’s a fair guess – but only a guess – that Sonic Plenary SF Fiber is led by Sonic.net, which is already in the business of building out its own FTTP system in San Francisco. No word yet from Sonic.net, though.

I don’t have any idea at all who’s behind Golden Gate Broadband Partners. A google search didn’t turn up any company that operates under that name, and it’s generic enough that it could be anybody. Same with FiberGateway – no company by that name – but tantalisingly, Altice, a mid-sized U.S. (and huge-sized European) cable company uses that brand name for its router and associated management app. At this point, though, it would be an egregious stretch to infer a connection.

Presumably, one of the written proposals was rejected out of hand. So only four groups are moving on to the oral interview round of the competition, which is scheduled to happen next week. After that, the City will finalise a list of qualified bidders who will be allowed to submit firm responses to a request for proposals that’ll be released later this year.

Handful of hopefuls chase contract to light San Francisco FTTP

by Steve Blum • , , , ,

Five groups are in the hunt for San Francisco’s citywide fiber to the premise (FTTP) project, at least according to one of the bidders. Monkeybrains, a San Francisco-based wireless Internet service provider, tweeted that they’re on one of the five teams that submitted proposals.

The deadline for filing responses to the City and County of San Francisco’s request for qualifications (RFQ) was last week. According to the San Francisco Examiner, Monkeybrains is talking, but no one else is saying much of anything about it…

Rudy Rucker, who founded Monkeybrains in 1998 with Alex Menendez…that they are part of one team of companies that submitted by last week’s deadline…

“Monkeybrains has teamed up with Black and Veatch, Zayo and Nokia,” Rucker said in an email. “I don’t know all the other teams … but I think we have a very strong team"…

“The City received several bids and we are impressed by the seriousness of the bid teams and their submissions,” [San Francisco mayor Mark Farrell] told the Examiner last week. “We look forward to reviewing the bids in detail and moving full-steam ahead with our procurement process.”

San Francisco voters will have the final say as to whether the City backs an FTTP project financially. The nominal business model calls for a private company to build and operate an open access, citywide FTTP system that would be run according to policies and practices laid down by the City. The total $1.9 billion cost works out to $51 per residence per month and $73 per business, and the City says it – or rather, taxpayers – will pick up some of the tab. It’s not saying how much, but it won’t be chump change and some kind of new, voter-approved tax is the only clear path to paying it.

At this stage, everything is still theoretical. The RFQ is only aimed at developing a short list of qualified bidders who will, presumably, submit hard proposals later this year. We might get a clue as to who’s in the running on Monday, when the City is scheduled to notify bid teams that they’re moving on to the next step of the process, which is one on one interviews.

San Francisco willing to pay for citywide FTTP, but not saying how much

by Steve Blum • , , , ,

The City and County of San Francisco wants a short list of companies willing to build an open access, wholesale fiber-to-the-premise system that reaches all homes and businesses. It posted a request for qualifications (RFQ) yesterday, asking potential partners to make their pitches, with the idea of winnowing the responses down to a handful that will go on to a second and final round of proposals later this year.

Unlike Los Angeles, San Francisco is making an upfront offer to subsidise at least some of the costs. In return, it wants a big say in how the system is run, including setting terms to sell capacity on the system to third party “retail service providers” (RSPs) that will, in turn, serve end users…

The City desires a state-of-the-art FTTP network capable of delivering a minimum of a gigabit to consumer premises, and scalable to higher speeds over time as the market develops. The network should include fully fiber connections to the premises that provides ubiquitous data, voice, video services to all communities in San Francisco and offers a choice of competitive private RSPs. The City also seeks to achieve construction and operations efficiencies wherever possible and to build and operate the network at the lowest possible cost.

A study released last October estimated the total construction tab at $1.9 billion or, put another way, a “connection fee” of $51 per home per month and $73 per business per month, which would also cover some operating costs.

The RFQ doesn’t put it on the table, though. The City is offering undefined lump sum payments based on construction milestones and ongoing service fees, but the wholesale partner will also have to depend on income from RSPs and other telecoms companies that want to lease capacity. It’ll share that revenue with the City and, according to the RFQ, is “expected to assume the full performance risk” of the project and “share in City’s financial risk including revenue risk, market risk and uptake risk”.

Responses are due 26 March 2018.

City and County of San Francisco request for qualifications for citywide fiber to the premises network, lit fiber and wi-fi services, 31 January 2018.

The potential for ubiquitous, open fiber-to-the-premises in San Francisco, CTC Technology & Energy and IMG Rebel, 17 October 2017.

City and County of San Francisco, financial analysis of options for a municipal fiber optic network for citywide Internet access, 15 March 2016.

Link to the City’s web page, which provides access to all documents and updates.

San Francisco broadband law gains independent ISP access to hundreds of buildings

by Steve Blum • , , , ,

A San Francisco municipal ordinance that gives tenants of multi-unit buildings the right to get broadband service from any qualified provider of their choosing has had a dramatic impact on the market, at least according to CALTEL, a lobbying group for independent telecoms companies in California. In comments filed with the Federal Communications Commission, CALTEL says San Francisco’s ordinance has opened doors for Sonic.net, California’s largest independent ISP…

Sonic now reports that the ordinance has been instrumental in assisting it to gain access to approximately 300 multi-tenant buildings in San Francisco. These facts also confirm San Francisco’s determination that the Commission’s “efforts…to enhance competition among providers of communications services in [multiple tenant environments] have not been successful,” and that it needed to “complement the Commission’s actions by prohibiting property owners from denying persons living or working in MTEs in San Francisco their right to choose a communications provider.

The FCC has two multiple tenant environment proceedings underway. One involves a direct challenge to the San Francisco ordinance and the other is a general enquiry into how, or even if, the FCC should regulate access to buildings and whether it should allow the sort of exclusive deals landlords make with broadband providers that the City and County of San Francisco wants to outlaw. It’s more than just apartment and office buildings. The FCC’s enquiry also includes “gated communities, mobile home parks, garden apartments, and other centrally managed residential real estate developments”, as well as home owner associations.

CALTEL argues that one-size-fits-all federal regulation is the wrong approach, because circumstances vary widely from state to state, and city to city. San Francisco’s desperately tight housing market combined with local rent control creates perverse incentives for landlords: lousy broadband service is one way to churn out existing tenants and bring in new ones who can be charged significantly higher rents.

FCC’s idea of open access to broadband service might not be so open

by Steve Blum • , , , ,

It’s hard to tell where the Federal Communications Commission is going with a new enquiry into open (or not) access rules for broadband, television and telephone service providers in apartments, condos, commercial buildings and other multiple tenant environments. Assuming commissioners vote to begin it – a safe bet – all they’d be doing immediately is asking for comments from anyone with an opinion on the subject. It’s not being done out of idle curiosity, though.

The draft of the notice that would open the enquiry says the grand goal is "to facilitate greater consumer choice and to enhance broadband deployment". But choice is in the eye of the chooser. It’s one thing to prohibit a cable company from signing an exclusive deal with a landlord that prevents tenants from installing satellite dishes, but quite another to say that members of a condo association can’t pool their market power and make a bulk buy of television or broadband service.

The current FCC majority is not a populist one. One of its earliest decisions was to kill an initiative begun during the Obama administration to open up the set top box market. Commissioner Michael O’Rielly has gone on rants about the evils of municipal broadband and urged congress to subsidise big incumbents rather than independent competitors. It’s a world view that’s consistent with the Orwellian message pushed by telco and cable lobbyists that anything that threatens their monopolies will doom consumer choice and end broadband deployment.

It’s also clear from the draft that the FCC doesn’t think highly of local efforts, such as in San Francisco, to require open access for Internet service providers to apartments and condos – the first bullet point in the half page "fact sheet" that accompanied the notice refers to the imposition of "overly burdensome infrastructure access requirements onto private companies" by state and local governments.

Take nothing for granted.