Cities may not use aesthetic considerations to regulate the placement of telecommunications antennas, the Ninth U.S. Circuit Court of Appeals has ruled.
Under the California Public Utilities Code, “the regulatory power is functional, and does not extend to aesthetics,” the court ruled while invalidating the City of La Cañada Flintridge’s ordinance regarding telecommunications facilities.
The ruling appears to be a major victory for telecommunications companies, with which California cities have an ongoing battle over the siting of antennas and other facilities for wireless communication.
In 2001, La Cañada Flintridge adopted an ordinance regulating “above-ground structures along city public rights-of-way.” The ordinance spelled out criteria city officials were to use when considering permits for such structures. A number of criteria concerned the appearance of the proposed structures.
In the months following the city’s adoption of the ordinance, Sprint PCS applied for five permits for antennas to remedy service dead spots in town. The city approved two applications, and Sprint dropped one. The city denied two other applications.
The city denied an application for an antenna on Figueroa Street because it would “significantly damage the existing character of the neighborhood and result in a negative aesthetic impact on the right-of-way,” change the character of the neighborhood, impact residents’ views of the neighborhood and be “unsightly.” The city rejected an antenna proposed for Descanso Drive because the antenna would result in an over-concentration of such structures, would be “out of character for the neighborhood,” and would “draw attention in a negative aesthetic manner along the street.”
Sprint sued over the two rejections. District Court Judge David Carter upheld the city’s decisions. A unanimous three-judge panel of Ninth Circuit not only overturned the lower court, but also threw out the city’s ordinance.
According to the appellate panel, California Public Utilities Code § 7901 governs the city’s ability to regulate in this area. “Section 7901 gives telephone companies broad authority to construct telephone lines and other fixtures,” Judge Diarmuid O’Scannlain wrote for the court. “By the plain text of the statute, the only substantive restriction on telephone companies is that they may not ‘incommode the public use’ of roads.”
“The text,” O’Scannlain noted, “focuses on the function of the road — its use, not its enjoyment.”
However, § 7901.1 provides two modifications to the general rule of § 7901. The former permits regulations based on “time, place and manner,” and on how facilities are accessed. A proposed antenna’s appearance could conceivably be regulated under the “manner” provision. But, the court ruled, that would be an “illogical” reading of the statute.
“Section 7901.1 only gives cities the authority to regulate the manner in which roads ‘are accessed,’ not the authority to regulate the manner in which telephone companies affect the road’s appearance,” O’Scannlain wrote. Under the law, cities cannot consider evidence regarding aesthetics when reviewing a permit application, the court ruled.
The city argued that the federal Telecommunications Act of 1996 reserves the city’s police powers and even mandates city autonomy. The court rejected this argument.
O’Scannlain explained it thusly: “If the local ordinance is valid under the [federal] Telecom Act, despite being invalid under state law, then the Telecom Act effectively provides a measure of sovereign authority to cities, which their own state constitutions and statutes deny them. The language of subsection (c)(7)(A), however, does not imply that local law should be valid to the exclusion of state law, but merely that local law itself may not be ignored. Thus, if the local law itself is invalid — for example, because it conflicts with state law — then subsection (c)(7)(A) will not save it.”
“[T]here is no local authority here in the first place — state law has already preempted local authority,” the court concluded. The authority sought by La Cañada Flintridge “would be antithetical to the purpose of the Telecom Act,” whose goal is to promote higher quality telecommunications services and rapid deployment of new technologies.
The Case:
Sprint PCS v. La Cañada Flintridge, No. 05-55014, 06 C.D.O.S. 451. Filed January 17, 2006.
The Lawyers;
For Sprint: John J. Flynn III, Nossaman, Guthner, Knox & Elliott, (949) 833-7800.
For La Cañada Flintridge: Scott Grossberg, Cihigoyenetche, Grossberg, & Clouse, (909) 483-1850.
