Telcos can't trouble, annoy, molest, embarrass, inconvenience, hinder, impede or obstruct Californians, court rules

16 September 2016 by Steve Blum

Don’t bother ugly ducklings, either.

California cities may regulate the aesthetics of cell sites and other wireless telecoms facilities. That was the ruling yesterday from a California appeals court, in a case brought by T-Mobile, Crown Castle and ExteNet against the City and County of San Francisco (h/t to Omar Masry there for the pointer).

The major argument in the case hinged on the definition of use. California law (section 7901 of the public utilities code, if you’re keeping score) says that telephone companies can build infrastructure on “public roads and highways in such manner and at such points as not to incommode the public use”.

T-Mobile and friends said that that San Francisco couldn’t reject a permit for a wireless facility on the basis of appearance. In other words, use of a road has nothing to do with aesthetics and ugly doesn’t incommode anyone.

Not so, said the unanimous opinion of the three first district appeals court judges who decided the case…

Plaintiffs’ argument rests on the faulty assumption that “use” of a public road means nothing beyond transportation thereon. We agree with [a federal appeals court ruling] that public use of the right-of-way is not limited to travel and that streets “may be employed to serve important social, expressive, and aesthetic functions”…

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.”

But the ruling also makes clear that there are limits on a local government’s use of aesthetic concerns to regulate cell towers and telecoms facilities. The court said that it might be okay to regulate appearances around, say, Coit Tower and not necessarily in “other parts of the urban landscape”, particularly “an area already cluttered with other electrical and telecommunications equipment”.

Potentially this decision is far reaching and affects all kinds of telecoms infrastructure, wireless and wireline alike. My bet: the final word will eventually come from the California supreme court.

Download the full text of the decision here.