Cities May Consider How Pole Attachments Look, Rules California Court
Cities may consider aesthetics when assessing telco pole attachment applications, a state appeals court said. In a published opinion Thursday, the California Court of Appeal for the First District rejected a challenge by T-Mobile, Crown Castle and ExteNet Systems to…
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a San Francisco ordinance meant to stop installation of telecom equipment that would diminish the city's beauty. The telecom companies said state law pre-empts the ordinance, but the appeals court disagreed. The companies are mistaken that local government has no authority to regulate installations unless specifically authorized by statute, the court said. Local governments can't bar telcos from installing equipment in public right of way, nor may they charge franchise fees, the court said. "But section 7901 does not grant telephone corporations unlimited rights to install their equipment within the right-of-way." The state statute allows companies to install equipment so long as it doesn't "incommode the public use of the road or highway or interrupt the navigation of the waters," but the companies and the city differed on how to define “incommode.” Telcos interpret it to mean only physical obstruction of travel, while the city said the dictionary definition is broader and includes discomfort and disturbance beyond blockage. The court agreed with a definition by the 9th U.S. Circuit Court of Appeals in a 2009 case, Sprint v. City of Palos Verdes, which found no conflict between California law and a city’s consideration of aesthetics. The 9th Circuit defined “incommode” as “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.” The telecom companies and the city didn’t comment. The FCC is mulling rules to ease small-cell siting and the wireless industry is asking states to streamline siting rules (see 1609080074).