San Francisco’s ability to mandate that next-generation wireless equipment be visually pleasing could turn largely on how the California Supreme Court defines a single word in the state’s public utility code.
The state’s high court heard oral argument Jan. 8 in a lawsuit T-Mobile West LLC and two other wireless businesses filed over San Francisco’s ban on installing wireless equipment “in manners or in locations that will diminish the City’s beauty.” The industry argues the city’s requirement interferes with their right to install 5G equipment offering ultra-high speed, high-capacity mobile connectivity.
The law allows telegraph or telephone lines “in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.” Much of the hour-long argument involved discussion over what “incommode” means.
The justices questioned whether a visual distraction would be included in the term. “Is it broad enough to include aesthetics?” Justice Goodwin H. Liu asked.
Companies such as AT&T Mobility, Comcast, and Google submitted briefs arguing that the city is singling out wireless facilities for a cumbersome and discriminatory permitting process that includes pre-deployment aesthetic review. San Francisco’s law is preempted by the state’s public utility code, the industry argues.
The Oxford English Dictionary defines incommode as to “subject to inconvenience or discomfort; to trouble, annoy molest, embarrass, inconvenience” or affect to “hinder, impede, obstruct,” the California League of Cities, State Association of Counties, and the International Municipal Lawyers Association said in a brief backing San Francisco.
The justices also questioned industry’s more expansive interpretation of the state statute to preempt local regulations.
“Absent some clear interpretation, why would we choose the maximalist interpretation?” Justice Mariano-Florentino Cuéllar asked T-Mobile’s counsel.
Chief Justice Tani Gorre Cantil-Sakauye noted that appearances factor into real estate values. Cities have land-use authority and historic police authority to regulate with reasonable time, place, and manner restrictions, she said. “Is there no middle ground here?” Cantil-Sakauye said.
The state legislature has struck that balance, said Joshua S. Turner, a partner with Wiley Rein LLP in Washington, D.C., representing wireless companies that sued San Francisco.
San Francisco contends the law allows regulating placement based on aesthetics. The city has approved 98 percent of wireless facility permits that T-Mobile, Crown Castle NG West LLC, and Extenet Systems (California) LLC filed by the time of the trial in the case in 2014.
California doesn’t consider aesthetics to be inconsistent with the law, said Jeremy Goldman, deputy San Francisco City Attorney. The state requires telephone lines to be underground along designated scenic highways. A state appeals court agreed with San Francisco that local governments are allowed to adopt aesthetics-based regulation.
The court is expected to rule within 90 days.
The case is T-Mobile West LLC v. City and County of San Francisco, Cal., No. S238001, oral arguments 1/8/19.
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