State Supreme Court Sides With San Francisco

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The California Supreme Court yesterday voted unanimously to uphold a lower court’s ruling in favor of municipal control by the City and County of San Francisco over wireless industry initiatives.  The suit, T-Mobile West, et al vs the City and County of San Francisco, et al has been an issue since 2011 when the City ruled that a permit must be granted prior to seeking to “construct, install or maintain telecommunications equipment in the public right-of- way” and whether it was all preempted by codes used by the Public Utilities Commission (PUC).  Companies such as Crown, T-Mobile and Extenet challenged the ruling saying it was discriminatory against the wireless industry but lost in both the San Francisco County Superior Court and the Court of Appeal of the State of California, First Appellate District, Div. 5.

Supreme Court Justice J. Corrigan rendered the opinion of the Court saying: “This court has never said explicitly whether state preemption principles are coextensive with the developed federal conception of obstacle preemption.  We conclude there is no obstacle preemption.”

The wireless plaintiffs claimed an ordinance clause, 7901, provides that telephone corporations may construct lines and erect equipment along public roads “in ways and locations that do not incommode the public use of the road.”

The Court said the plaintiff’s (wireless industry’s) argument is that section 7901’s purpose is to encourage technological advancement in the state’s telecommunications networks and that, because of the enforcement of the Ordinance, could hinder that purpose.  “The Ordinance is preempted,” the Court said. “But no legislation pursues its objectives at all costs.”

“Finally, we think it appropriate to consider the Public Utilities Commission’s understanding of the statutory scheme. In recognition of its expertise we have consistently accord deference to the PUC’s views concerning utilities regulation. The PUC’s interpretation of the PUC Utility Code would not be disturbed.

A company seeking to build under section 7901 must approach the PUC and obtain a certificate of public necessity.The PUC’s default policy is one of deference to municipalities in matters concerning the design and location of wireless facilites.”

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By Jim Fryer, Managing Editor, Inside Towers

April 5, 2019

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