In T-Mobile Wireless Equipment Dispute, San Francisco Wins on Aesthetics

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By Lydia Beyoud

Sept. 19 — A San Francisco court's decision to set esthetic controls on wireless equipment installation by T-Mobile U.S. Inc. and other wireless companies could have a major impact on the roll-out of 5G networks.

The decision addressed a key matter for the future of wireless equipment infrastructure deployment, as telecommunications carriers and cities seek greater connectivity and are preparing for the installation of 5G wireless networks, which will feature faster internet connection speeds and other improvements. Those networks — expected to be operational by 2020—will underpin the “internet of things” (IoT), in which billions of devices are connected to one another. Many cities hope to tap into the IoT through “smart city” initiatives enabling more efficient traffic systems, infrastructure monitoring and many other applications that they anticipate will drive economic growth.

Looks do matter when it comes to wireless infrastructure installations, the court held. In a case brought by T-Mobile and two other wireless companies in San Francisco, the California Court of Appeal said Sept. 15 that the city and county governments could assert reasonable esthetic controls over wireless equipment sites in a public right of way ( T-Mobile W. LLC v. City & Cnty. of San Francisco, 2016 BL 302276, Cal. Ct. App., No. A144252, 9/15/16 ).

The city's controls decisions included the placement of electrical cabinets that support small-cell radio receivers attached to utility poles.

Tech Advances + Aesthetics = Tension

“Sometimes tension exists between technological advancement and community aesthetics,” according to the decision by Justice Terence L. Bruiniers.

The plaintiffs, T-Mobile West LLC, Crown Castle NG West LLC and ExteNet Systems LLC, argued that portions of California's public utility code, Pub. Util. Code, § 7901, 7901.1, granted them compulsory access to utility poles in public rights of way.

Those provisions, the plaintiffs said, only restricted equipment deployment to the degree that the wireless antennas, transmitters or power supplies “incommode” or impede residents' physical ability to navigate the public rights of way, including sidewalks, roads and waterways.

The city and county of San Francisco argued their local restrictions were consistent with state law and allowed them to regulate the size and location of certain wireless facility installations, including the placement of large electrical cabinets, which support small-cell radio antennas.

The municipality said the restrictions were intended to prevent telecommunications providers from placing equipment in a way that would diminish the city's aesthetics. San Francisco said its historical and unique character and geographic setting were vital to the city's economy. “Beautiful views enhance property values and increase the City’s tax base. The City’s economy, as well as the health and well-being of all who visit, work or live in the City, depends in part on maintaining the City’s beauty,” the San Francisco Board of Supervisors said in a 2011 wireless permit ordinance, the source of the dispute.

“Our review of the California Constitution, statutory provisions, and the relevant case law lead us to believe section 7901 is a limited grant of rights to telephone corporations, with a reservation of local police power that is broad enough to allow discretionary aesthetics-based regulation,” the court said.

The court also was persuaded by the U.S. Court of Appeals for the Ninth Circuit's decision in Sprint PCS Assets v. Palos Verdes Estates, 583 F.3d 716 (9th Cir. 2009), which found that plaintiffs' interpretation of incommoding a public right of way to apply only physical incommodation “is too narrow and inconsistent with the term's plain meaning.”

A spokesman for ExteNet and a spokeswoman for Crown Castle declined to comment. T-Mobile did not reply to a Bloomberg BNA request for comment.

The court said the California legislature could grant the wireless industry further relief from local regulations by amending the relevant code sections, if it disagreed with the court's conclusion.

5G Future

The T-Mobile decision is critical to determining how to balance municipalities' dual interests in preserving the aesthetics of a place while also encouraging companies to build better broadband networks, including 5G, Jonathan L. Kramer, a wireless telecom attorney and engineer with Los Angeles-based Telecom Law Firm PC, told Bloomberg BNA. Kramer served as the city's expert in the case.

But 5G networks are highly dependent on the proximity of wireless equipment to end users. “If you're a business or a residence user, that means the cell sites are going to be in the public right of way,” Kramer said.

“Access to the public right of way is the absolute ‘Holy Grail' for 5G and beyond, because distance matters. Reducing distance matters even more,” he said. Therefore, the pressure to provide 5G networks is likely to overwhelm state or local laws restricting wireless cellular site deployments, he said.

The California decision ensures that local governments don't find themselves caught in what Kramer called a politically “untenable” position of either discouraging companies to deploy modern telecom services or allowing “big ugly wireless sites outside your bedroom window.”

“This is the tension between 5G, state, federal law and local governments,” Kramer said.

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

For More Information

Text of the decision is at http://src.bna.com/iHu.

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