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Date: 05-06-2019
Case Style:
T-Mobile West, LLC v. City and County of San Francisco
Case Number: S238001
Judge: Corrigan, J.
Court: Supreme Court of california
Plaintiff's Attorney: Matthew John Gardner, Martin Lee Fineman, Megan L. Brown, Meredith S. Singer, T. Scott Thompson, Daniel P. Reing and Joshua S. Turner
Defendant's Attorney: William Kirk Sanders, Dennis Jose Herrera, Erin Brianna Bernstein, Christine Bohrer Van Aken and Jeremy Michael Goldman
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By ordinance the City and County of San Francisco (the
City) requires wireless telephone service companies to obtain
permits to install and maintain lines and equipment in public
rights-of-way. Some permits will not issue unless the
application conforms to the City’s established aesthetic
guidelines. Plaintiffs assert a facial challenge urging that
(1) the ordinance is preempted by state law and (2) even if not
preempted, the ordinance violates a state statute. The trial
court and the Court of Appeal rejected both arguments. We do
likewise.
I. BACKGROUND
Plaintiffs are telecommunications companies. They
install and operate wireless equipment throughout the City,
including on utility poles located along public roads and
highways.1
In January 2011, the City adopted ordinance No.
1 The plaintiffs named in the operative complaint were TMobile
West Corporation, NextG Networks of California, Inc.,
and ExteNet Systems (California) LLC. T-Mobile West
Corporation has also appeared in this litigation as T-Mobile
West LLC. NextG Networks of California, Inc. has also
appeared as Crown Castle NG West LLC and Crown Castle NG
West Inc. (T-Mobile West LLC v. City and County of San
Francisco (2016) 3 Cal.App.5th 334, 340, fn. 3 (T-Mobile West).)
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
2
12-11 (the Ordinance),2 which requires “any Person seeking to
construct, install, or maintain a Personal Wireless Service
Facility in the Public Rights-of-Way to obtain” a permit. (S.F.
Pub. Works Code, art. 25, § 1500, subd. (a).) In adopting the
Ordinance, the board of supervisors noted that the City “is
widely recognized to be one of the world’s most beautiful cities,”
which is vital to its tourist industry and an important reason
that residents and businesses locate there. Due to growing
demand, requests from the wireless industry to place equipment
on utility poles had increased. The board opined that the City
needed to regulate the placement of this equipment to prevent
installation in ways or locations “that will diminish the City’s
beauty.” The board acknowledged that telephone corporations
have a right, under state law, “to use the public rights-of-way to
install and maintain ‘telephone lines’ and related facilities
required to provide telephone service.” But it asserted that local
governments may “enact laws that limit the intrusive effect of
these lines and facilities.”
The Ordinance specifies areas designated for heightened
aesthetic review. (See S.F. Pub. Works Code, art. 25, § 1502.)
These include historic districts and areas that have “ ‘good’ ” or
“ ‘excellent’ ” views or are adjacent to parks or open spaces.
Not all plaintiffs install and operate the same equipment, but
there is no dispute that they are all “ ‘telephone corporation[s],’ ”
as that term is defined by Public Utilities Code section 234, nor
that all of the equipment in question fits within the definition of
“ ‘telephone line’ ” in Public Utilities Code section 233. All
unspecified statutory references are to the Public Utilities Code.
2 The Ordinance was codified as article 25 of the San
Francisco Public Works Code.
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
3
(Ibid.) The Ordinance establishes various standards of aesthetic
compatibility for wireless equipment. In historic districts, for
example, installation may only be approved if the City’s
planning department determines that it would not “significantly
degrade the aesthetic attributes that were the basis for the
special designation” of the building or district. (S.F. Pub. Works
Code, art. 25, § 1502; see also id., §§ 1508, 1509, 1510.) In “view”
districts, proposed installation may not “significantly impair”
the protected views.3
(S.F. Pub. Works Code, art. 25, § 1502.)
Plaintiffs sought declaratory and injunctive relief. The
operative complaint alleged five causes of action, only one of
which is at issue.
4
It alleges the Ordinance and implementing
regulations are preempted by section 7901 and violate section
7901.1. Under section 7901, “telephone corporations may
construct . . . telephone lines along and upon any public road or
highway, along or across any of the waters or lands within this
State, and may erect poles, posts, piers, or abutments for
supporting the insulators, wires, and other necessary fixtures of
their lines, in such manner and at such points as not to
incommode the public use of the road or highway or interrupt
3 The Court of Appeal discussed other provisions of a
previous enactment of the Ordinance that are not in issue here.
(T-Mobile West, supra, 3 Cal.App.5th at pp. 340-341.) We review
the current version of the Ordinance. (Kash Enterprises, Inc. v.
City of Los Angeles (1977) 19 Cal.3d 294, 306, fn. 6.)
4 Plaintiffs’ first, second, fourth, and fifth causes of action
are not before us. The first cause of action was resolved in
plaintiffs’ favor by summary adjudication. The second was
dismissed by plaintiffs before trial. The fourth was resolved in
City’s favor by summary adjudication. And the fifth was
resolved in plaintiffs’ favor after trial.
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
4
the navigation of the waters.”5
According to plaintiffs, section
7901 preempted the Ordinance to the extent it allowed the City
to condition permit approval on aesthetic considerations.
Section 7901.1 sets out the Legislature’s intent,
“consistent with Section 7901, that municipalities shall have the
right to exercise reasonable control as to the time, place, and
manner in which roads, highways, and waterways are accessed.”
(§ 7901.1, subd. (a).) But section 7901.1 also provides that, to be
considered reasonable, the control exercised “shall, at a
minimum, be applied to all entities in an equivalent manner.”
(§ 7901.1, subd. (b).) Plaintiffs alleged the Ordinance violated
subdivision (b) of section 7901.1 by treating wireless providers
differently from other telephone corporations.
The trial court ruled that section 7901 did not preempt the
challenged portions of the Ordinance and rejected plaintiffs’
claim that it violated section 7901.1. The Court of Appeal
affirmed. (T-Mobile West, supra, 3 Cal.App.5th at pp. 339, 359.)
II. DISCUSSION
A. Section 7901 Does Not Preempt the Ordinance
1. Preemption Principles
Under the California Constitution, cities and counties
“may make and enforce within [their] limits all local, police,
sanitary, and other ordinances and regulations not in conflict
with general laws.” (Cal. Const., art. XI, § 7.) General laws are
those that apply statewide and deal with matters of statewide
5 This case does not involve the construction or installation
of lines or equipment across state waters. Thus, we limit our
discussion to lines installed along public roads and highways,
which we refer to collectively as public roads.
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
5
concern. (Eastlick v. City of Los Angeles (1947) 29 Cal.2d 661,
665.) The “inherent local police power includes broad authority
to determine, for purposes of the public health, safety, and
welfare, the appropriate uses of land within a local jurisdiction’s
borders.” (City of Riverside v. Inland Empire Patients Health &
Wellness Center, Inc. (2013) 56 Cal.4th 729, 738 (City of
Riverside); see also Big Creek Lumber Co. v. County of Santa
Cruz (2006) 38 Cal.4th 1139, 1151 (Big Creek Lumber).) The
local police power generally includes the authority to establish
aesthetic conditions for land use. (Ehrlich v. City of Culver City
(1996) 12 Cal.4th 854, 886; Disney v. City of Concord (2011) 194
Cal.App.4th 1410, 1416.)
“[L]ocal legislation that conflicts with state law is void.”
(City of Riverside, supra, 56 Cal.4th at p. 743, citing SherwinWilliams
Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897.) A
conflict exists when the local legislation “ ‘ “ ‘duplicates,
contradicts, or enters an area fully occupied by general law,
either expressly or by legislative implication.’ ” ’ ” (SherwinWilliams,
at p. 897.) Local legislation duplicates general law if
both enactments are coextensive. (Ibid., citing In re Portnoy
(1942) 21 Cal.2d 237, 240.) Local legislation is contradictory
when it is inimical to general law. (Sherwin-Williams, at p. 898,
citing Ex parte Daniels (1920) 183 Cal. 636, 641-648.) State law
fully occupies a field “when the Legislature ‘expressly
manifest[s]’ its intent to occupy the legal area or when the
Legislature ‘impliedly’ occupies the field.” (O’Connell v. City of
Stockton (2007) 41 Cal.4th 1061, 1068 (O’Connell), citing
Sherwin-Williams, at p. 898.)
The party claiming preemption has the burden of proof.
(Big Creek Lumber, supra, 38 Cal.4th at p. 1149.) “[W]hen local
government regulates in an area over which it traditionally has
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
6
exercised control, such as the location of particular land uses,
California courts will presume” the regulation is not preempted
unless there is a clear indication of preemptive intent. (Ibid.,
citing IT Corp. v. Solano County Bd. of Supervisors (1991) 1
Cal.4th 81, 93.) Ruling on a facial challenge to a local ordinance,
the court considers the text of the measure itself, not its
application to any particular circumstances or individual. (San
Francisco Apartment Assn. v. City and County of San Francisco
(2016) 3 Cal.App.5th 463, 487, citing Pieri v. City and County of
San Francisco (2006) 137 Cal.App.4th 886, 894, which in turn
cites Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)6
2. Analysis
Section 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.”
We review the statute’s language to determine the scope of the
rights it grants to telephone corporations and whether, by
6 There is some uncertainty regarding the standard for
facial constitutional challenges to statutes and local ordinances.
(Today’s Fresh Start, Inc. v. Los Angeles County Office of
Education (2013) 57 Cal.4th 197, 218.) Some cases have held
that legislation is invalid if it conflicts in the generality or great
majority of cases. (Guardianship of Ann S. (2009) 45 Cal.4th
1110, 1126.) Others have articulated a stricter standard,
holding that legislation is invalid only if it presents a total and
fatal conflict with applicable constitutional prohibitions. (Ibid.;
see also Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084.)
We need not settle on a precise formulation of the applicable
standard because, as explained below, we find no inherent
conflict between the Ordinance and section 7901. Thus,
plaintiffs’ claim fails under any articulated standard.
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
7
granting those rights, the Legislature intended to preempt local
regulation based on aesthetic considerations. These questions
of law are subject to de novo review. (Bruns v. E-Commerce
Exchange, Inc. (2011) 51 Cal.4th 717, 724; Farm Raised Salmon
Cases (2008) 42 Cal.4th 1077, 1089, fn. 10.)
The parties agree that section 7901 grants telephone
corporations a statewide franchise to engage in the
telecommunications business.7
(See Western Union Tel. Co. v.
Visalia (1906) 149 Cal. 744, 750 (Visalia).) Thus, a local
government cannot insist that a telephone corporation obtain a
local franchise to operate within its jurisdiction. (See Visalia,
at p. 751; see also Pac. Tel. & Tel. Co. v. City & County of S. F.
(1959) 51 Cal.2d 766, 771 (Pacific Telephone I).) The parties also
agree that the franchise rights conferred are limited by the
prohibition against incommoding the public use of roads, and
that local governments have authority to prevent those impacts.
Plaintiffs argue section 7901 grants them more than the
mere right to operate. In their view, section 7901 grants them
the right to construct lines and erect equipment along public
roads so long as they do not obstruct the path of travel. The
necessary corollary to this right is that local governments
cannot prevent the construction of lines and equipment unless
the installation of the facilities will obstruct the path of travel.
Plaintiffs urge that the Legislature enacted section 7901 to
promote technological advancement and ensure a functioning,
statewide telecommunications system. In light of those
7
In this context, a franchise is a “government-conferred
right or privilege to engage in specific business or to exercise
corporate powers.” (Black’s Law Dict. (10th ed. 2014) p. 772, col.
2.)
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
8
objectives, they contend that their right to construct telephone
lines must be construed broadly, and local authority limited to
preventing roadway obstructions.
Preliminarily, plaintiffs’ argument appears to rest on the
premise that the City only has the power to regulate telephone
line construction based on aesthetic considerations if section
7901’s incommode clause can be read to accommodate that
power. That premise is flawed. As mentioned, the City has
inherent local police power to determine the appropriate uses of
land within its jurisdiction. That power includes the authority
to establish aesthetic conditions for land use. Under our
preemption cases, the question is not whether the incommode
clause can be read to permit the City’s exercise of power under
the Ordinance. Rather, it is whether section 7901 divests the
City of that power.
We also disagree with plaintiffs’ contention that section
7901’s incommode clause limits their right to construct lines
only if the installed lines and equipment would obstruct the path
of travel. Contrary to plaintiffs’ argument, the incommode
clause need not be read so narrowly. As the Court of Appeal
noted, the word “ ‘incommode’ ” means “ ‘to give inconvenience
or distress to: disturb.’ ” (T-Mobile West, supra, 3 Cal.App.5th
at p. 351, citing Merriam-Webster Online Dict., available at
[as
of April 3, 2019].)
8
The Court of Appeal also quoted the
definition of “incommode” from the 1828 version of Webster’s
Dictionary. Under that definition, “incommode” means “ ‘[t]o
8 All Internet citations in this opinion are archived by year,
docket number, and case name at
38324.htm>.
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
9
give inconvenience to; to give trouble to; to disturb or molest in
the quiet enjoyment of something, or in the facility of
acquisition.’ ” (T-Mobile West, supra, 3 Cal.App.5th at p. 351,
citing Webster’s Dict. 1828—online ed., available at
e> [as of April 3, 2019].) For our purposes, it is sufficient to state
that the meaning of incommode has not changed meaningfully
since section 7901’s enactment.9
Obstructing the path of travel
is one way that telephone lines could disturb or give
inconvenience to public road use. But travel is not the sole use
of public roads; other uses may be incommoded beyond the
obstruction of travel. (T-Mobile West, at pp. 355-356.) For
example, lines or equipment might generate noise, cause
negative health consequences, or create safety concerns. All
these impacts could disturb public road use, or disturb its quiet
enjoyment.
Plaintiffs assert the case law supports their statutory
construction. For example, City of Petaluma v. Pac. Tel. & Tel.
Co. (1955) 44 Cal.2d 284 (Petaluma) stated that the “franchise
tendered by [section 7901] . . . [is] superior to and free from any
grant made by a subordinate legislative body.” (Id. at p. 287;
see also Pacific Telephone I, supra, 51 Cal.2d at p. 770; County
of Inyo v. Hess (1921) 53 Cal.App. 415, 425 (County of Inyo).)
9 The predecessor of section 7901, Civil Code section 536,
was first enacted in 1872 as part of the original Civil Code.
(Anderson v. Time Warner Telecom of California (2005) 129
Cal.App.4th 411, 419, citing Sunset Tel. and Tel. Co. v.
Pasadena (1911) 161 Cal. 265, 273.) Civil Code section 536
contained the “incommode” language, as did its predecessor,
which was adopted as part of the Statutes of California in 1850.
(Stats. 1850, ch. 128, § 150, p. 369.)
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
10
Similarly, Pac. Tel. & Tel. Co. v. City of Los Angeles (1955) 44
Cal.2d 272 (City of Los Angeles), held that the “authority to
grant a franchise to engage in the telephone business resides in
the state, and the city is without power to require a telephone
company to obtain such a franchise unless the right to do so has
been delegated to it by the state.” (Id. at pp. 279-280.)
But these cases do not go as far as plaintiffs suggest. Each
addressed the question whether a telephone corporation can be
required to obtain a local franchise to operate. (See Pacific
Telephone I, supra, 51 Cal.2d at p. 767; Petaluma, supra, 44
Cal.2d at p. 285; City of Los Angeles, supra, 44 Cal. 2d at p. 276;
County of Inyo, supra, 53 Cal.App. at p. 425.) None considered
the distinct question whether a local government can condition
permit approval on aesthetic or other considerations that arise
under the local police power. A permit is, of course, different
from a franchise. The distinction may be best understood by
considering the effect of the denial of either. The denial of a
franchise would completely bar a telephone corporation from
operating within a city. The denial of a permit, on the other
hand, would simply prevent construction of lines in the proposed
manner at the proposed location.
A few published decisions have tangentially addressed the
scope of the inherent local police power to regulate the manner
and location of telephone line installations. Those cases cut
against plaintiffs’ proposed construction.
In Pacific Tel. & Tel. Co. v. City & County of San Francisco
(1961) 197 Cal.App.2d 133 (Pacific Telephone II), the City
argued it could require a telephone corporation to obtain a local
franchise to operate within its jurisdiction because the power to
grant franchises fell within its police power. (Id. at p. 152.) The
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
11
court rejected the City’s argument, reasoning that the phrase
“ ‘police power’ has two meanings, ‘a comprehensive one
embracing in substance the whole field of state authority and
the other a narrower one including only state power to deal with
the health, safety and morals of the people.’ ” (Ibid.) “Where a
corporation has a state franchise to use a city’s streets, the city
derives its rights to regulate the particular location and manner
of installation of the franchise holder’s facilities from the
narrower sense of the police power. Thus, because of the state
concern in communications, the state has retained to itself the
broader police power of granting franchises, leaving to the
municipalities the narrower police power of controlling location
and manner of installation.” (Ibid., italics added.)
This court, too, has distinguished the power to grant
franchises from the power to regulate the location and manner
of installation by permit. In Visalia, supra, 149 Cal. 744, the
city adopted an ordinance that (i) authorized a telephone
company to erect telegraph poles and wires on city streets, (ii)
approved the location of poles and wires then in use, (iii)
prohibited poles and wires from interfering with travel on city
streets, and (iv) required all poles to be of a uniform height. (Id.
at pp. 747-748.) The city asserted its ordinance operated to
grant the company a “ ‘franchise,’ ” and then attempted to assess
a tax on the franchise. (Id. at p. 745.) The company challenged
the assessment. It argued that, because the ordinance did not
create a franchise, the tax assessment was invalid. (Id. at pp.
745-746.) We concluded the ordinance did not create a local
franchise. (Id. at p. 750.) By virtue of its state franchise, “the
appellant had the right, of which the city could not deprive it, to
construct and operate its lines along the streets of the city.”
(Ibid.) “[N]evertheless it could not maintain its poles and wires
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
12
in such a manner as to unreasonably obstruct and interfere with
ordinary travel; and the city had the authority, under its police
power, to so regulate the manner of plaintiff’s placing and
maintaining its poles and wires as to prevent unreasonable
obstruction of travel.” (Id. at pp. 750-751, italics added.) “[T]he
ordinance in question was not intended to be anything more . . .
than the exercise of this authority to regulate.” (Id. at p. 751)10
Plaintiffs argue the italicized language above shows that
local regulatory authority is limited to preventing travel
obstructions. But the quoted language is merely descriptive, not
prescriptive. Visalia involved an ordinance that specifically
prohibited interference with travel on city streets, and the court
was simply describing the ordinance before it, not establishing
the bounds of local government regulatory authority. Moreover,
the Visalia court did not question the propriety of the
ordinance’s requirement that all poles be a uniform height, nor
suggest that requirement was related to preventing obstructions
to travel. Thus, Visalia does not support the conclusion that
section 7901 was meant to restrict local government power in
the manner plaintiffs suggest. The “right of telephone
corporations to construct telephone lines in public rights-of-way
is not absolute.” (City of Huntington Beach v. Public Utilities
Com. (2013) 214 Cal.App.4th 566, 590 (City of Huntington
Beach).) Instead, it is a “ ‘limited right to use the highways . . .
only to the extent necessary for the furnishing of services to the
10 Visalia interpreted a predecessor statute, Civil Code
section 536, which was repealed in 1951 and reenacted as
section 7901. (Stats. 1951, ch. 764, pp. 2025, 2194, 2258
[reenacting Civ. Code, former § 536 as Pub. Util. Code, § 7901].)
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
13
public.’ ” (Ibid., quoting County of L. A. v. Southern Cal. Tel. Co.
(1948) 32 Cal.2d 378, 387; see also Pacific Tel. & Tel. Co. v.
Redevelopment Agency (1977) 75 Cal.App.3d 957, 963.)11
Having delineated the right granted by section 7901, we
now turn to its preemptive sweep. Because the location and
manner of line installation are areas over which local
governments traditionally exercise control (Visalia, supra, 149
Cal. at pp. 750-751), we presume the ordinance is not preempted
absent a clear indication of preemptive intent. (Big Creek
Lumber, supra, 38 Cal.4th at p. 1149.) Plaintiffs put forth a
number of preemption theories. They argue the Ordinance is
contradictory to section 7901. At oral argument, they asserted
the Legislature occupied the field with section 7901, the terms
of which indicate that a paramount state concern will not
tolerate additional local action. And in their briefs, many of
plaintiffs’ arguments were focused on what has been labeled, in
the federal context, as obstacle preemption.
“The ‘contradictory and inimical’ form of preemption does
not apply unless the ordinance directly requires what the state
11 The Ninth Circuit has addressed this issue twice, coming
to a different conclusion each time. In Sprint PCS Assets v. City
of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, the Ninth
Circuit found no conflict between section 7901 and a local
ordinance conditioning permit approval on aesthetic
considerations. (Palos Verdes Estates, at pp. 721-723.) In an
unpublished decision issued three years earlier, the Ninth
Circuit had reached the opposite conclusion. (Sprint PCS v. La
Cañada Flintridge (9th Cir. 2006) 182 Fed.Appx. 688, 689.) Due
to its unpublished status, the La Cañada Flintridge decision
carries no precedential value. (T-Mobile West, supra, 3
Cal.App.5th at p. 355, citing Bowen v. Ziasun Technologies, Inc.
(2004) 116 Cal.App.4th 777, 787, fn. 6.)
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
14
statute forbids or prohibits what the state enactment demands.”
(City of Riverside, supra, 56 Cal.4th at p. 743, citing Big Creek
Lumber, supra, 38 Cal.4th at p. 1161.) “[N]o inimical conflict
will be found where it is reasonably possible to comply with both
the state and local laws.” (City of Riverside, at p. 743.) As noted,
section 7901 grants telephone corporations the right to install
lines on public roads without obtaining a local franchise. The
Ordinance does not require plaintiffs to obtain a local franchise
to operate within the City. Nor does it allow certain companies
to use public roads while excluding others. Any wireless
provider may construct telephone lines on the City’s public
roads so long as it obtains a permit, which may sometimes be
conditioned on aesthetic approval. Because section 7901 says
nothing about the aesthetics or appearance of telephone lines,
the Ordinance is not inimical to the statute.
The argument that the Legislature occupied the field by
implication likewise fails. Field preemption generally exists
where the Legislature has comprehensively regulated in an
area, leaving no room for additional local action. (See, e.g.,
American Financial Services Assn. v. City of Oakland (2005) 34
Cal.4th 1239, 1252-1257; O’Connell, supra, 41 Cal.4th 1061,
1068-1074.) Unlike the statutory schemes addressed in
American Financial and O’Connell, section 7901 does not
comprehensively regulate telephone line installation or provide
a general regulatory scheme. On the contrary, section 7901
consists of a single sentence. Moreover, although the granting
of telephone franchises has been deemed a matter of statewide
concern (Pacific Telephone I, supra, 51 Cal.2d at p. 774; Pacific
Telephone II, supra, 197 Cal.App.2d at p. 152), the power to
regulate the location and manner of line installation is generally
a matter left to local regulation. The City is not attempting to
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
15
regulate in an area over which the state has traditionally
exercised control. Instead, this is an area of regulation in which
there are “ ‘significant local interest[s] to be served that may
differ from one locality to another.’ ” (Big Creek Lumber, supra,
38 Cal.4th at p. 1149.)
City of Riverside, supra, 56 Cal.4th 729, is instructive.
There, the question was whether state statutes designed to
enhance patient and caregiver access to medical marijuana
preempted a local zoning law banning dispensaries within a
city’s limits. (Id. at pp. 737, 739-740.) An early enactment had
declared that physicians could not be punished for
recommending medical marijuana and that state statutes
prohibiting possession and cultivation of marijuana would not
apply to patients or caregivers. (Id. at p. 744.) A subsequent
enactment established a program for issuing medical marijuana
identification cards and provided that a cardholder could not be
arrested for possession or cultivation in permitted amounts. (Id.
at p. 745.) We concluded that the “narrow reach of these
statutes” (ibid.) showed they did not “expressly or impliedly
preempt [the city’s] zoning provisions” (id. at p. 752).
Preemption was not implied because the Legislature had
not tried “to fully occupy the field of medical marijuana
regulation as a matter of statewide concern, or to partially
occupy this field under circumstances indicating that further
local regulation will not be tolerated.” (City of Riverside, supra,
56 Cal.4th at p. 755.) While state statutes took “limited steps
toward recognizing marijuana as a medicine,” they described
“no comprehensive scheme or system for authorizing,
controlling, or regulating the processing and distribution of
marijuana for medical purposes, such that no room remains for
local action.” (Ibid.) Moreover, there were significant local
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
16
interests that could vary by jurisdiction, giving rise to a
presumption against preemption. (Ibid.)
Similarly, here, the Legislature has not adopted a
comprehensive regulatory scheme. Instead, it has taken the
limited step of guaranteeing that telephone corporations need
not secure a local franchise to operate in the state or to construct
local lines and equipment. Moreover, the statute leaves room
for additional local action and there are significant local
interests relating to road use that may vary by jurisdiction.
Finally, plaintiffs’ briefing raises arguments that sound in
the theory of obstacle preemption. Under that theory, a local
law would be displaced if it hinders the accomplishment of the
purposes behind a state law. This court has never said explicitly
whether state preemption principles are coextensive with the
developed federal conception of obstacle preemption. (See, e.g.,
Great Western Shows, Inc. v. County of Los Angeles (2002) 27
Cal.4th 853, 867-868; cf. City of Riverside, supra, 56 Cal.4th at
pp. 763-765 (conc. opn. of Liu, J.).) But assuming for the sake of
argument that the theory applies, we conclude there is no
obstacle preemption here.
The gist of plaintiffs’ argument is that section 7901’s
purpose is to encourage technological advancement in the state’s
telecommunications networks and that, because enforcement of
the Ordinance could hinder that purpose, the Ordinance is
preempted. But no legislation pursues its objectives at all costs.
(Pension Ben. Guar. Corp. v. LTV Corp. (1990) 496 U.S. 633,
646-647.) Moreover, the Legislature made clear that the goal of
technological advancement is not paramount to all others by
including the incommode clause in section 7901, thereby leaving
room for local regulation of telephone line installation.
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
17
Finally, we think it appropriate to consider the Public
Utilities Commission’s (PUC) understanding of the statutory
scheme. In recognition of its expertise, we have consistently
accorded deference to the PUC’s views concerning utilities
regulation. The PUC’s “interpretation of the Public Utility Code
‘should not be disturbed unless it fails to bear a reasonable
relation to statutory purposes and language.’ ” (Southern
California Edison Co. v. Peevey (2003) 31 Cal.4th 781, 796,
quoting Greyhound Lines, Inc. v. Public Utilities Com. (1968) 68
Cal.2d 406, 410-411.) Here, the PUC has made determinations
about the scope of permissible regulation that are on point.
The state Constitution vests principal regulatory
authority over utilities with the PUC, but carves out an ongoing
area of municipal control. (Cal. Const., art. XII, § 8.) A company
seeking to build under section 7901 must approach the PUC and
obtain a certificate of public necessity. (§ 1001; see City of
Huntington Beach, supra, 214 Cal.App.4th at p. 585.) The
certificate is not alone sufficient; a utility will still be subject to
local control in carrying out the construction. Municipalities
may surrender to the PUC regulation of a utility’s relations with
its customers (§ 2901), but they are forbidden from yielding to
the PUC their police powers to protect the public from the
adverse impacts of utilities operations (§ 2902).
Consistent with these statutes, the PUC’s default policy is
one of deference to municipalities in matters concerning the
design and location of wireless facilities. In a 1996 opinion
adopting the general order governing wireless facility
construction, the PUC states the general order “recognize[s]
that primary authority regarding cell siting issues should
continue to be deferred to local authorities. . . . The [PUC’s] role
continues to be that of the agency of last resort, intervening only
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
18
when a utility contends that local actions impede statewide
goals . . . .” (Re Siting and Environmental Review of Cellular
Mobile Radiotelephone Utility Facilities (1996) 66 Cal.P.U.C.2d
257, 260; see also Re Competition for Local Exchange Service
(1998) 82 Cal.P.U.C.2d 510, 544.)12
The order itself
“acknowledges that local citizens and local government are often
in a better position than the [PUC] to measure local impact and
to identify alternative sites. Accordingly, the [PUC] will
generally defer to local governments to regulate the location and
design of cell sites . . . .” (PUC, General order No. 159-A (1996)
p. 3 (General Order 159A), available at
[as
of April 3, 2019].)
The exception to this default policy is telling: the PUC
reserves the right to preempt local decisions about specific sites
“when there is a clear conflict with the [PUC’s] goals and/or
statewide interests.” (General Order 159A, supra, at p. 3.) In
other words, generally the PUC will not object to municipalities
dictating alternate locations based on local impacts,
13 but it will
step in if statewide goals such as “high quality, reliable and
widespread cellular services to state residents” are threatened.
12 In its 1996 opinion adopting general order No. 159-A, the
PUC left implicit the portions of the statutory scheme it was
applying. In its 1998 opinion, the PUC clarified the respective
regulatory spheres in response to arguments based on sections
2902, 7901, 7901.1 and the constitutional provisions allocating
authority to cities and the PUC. (See Re Competition for Local
Exchange Service, supra, 82 Cal.P.U.C.2d at pp. 543–544.)
13 Among the PUC’s express priorities regarding wireless
facility construction is that “the public health, safety, welfare,
and zoning concerns of local government are addressed.”
(General Order 159A, supra, at p. 3.)
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
19
(General Order 159A, at p. 3.) Contrary to plaintiffs’ view of the
respective spheres of state and local authority, the PUC’s
approach does not restrict municipalities to judging only
whether a requested permit would impede traffic. Instead, the
PUC accords local governments the full scope of their ordinary
police powers unless the exercise of those powers would
undermine state policies.
Plaintiffs argue our construction of section 7901, and a
decision upholding the City’s authority to enforce the
Ordinance, will “hinder the roll-out of advanced services needed
to upgrade networks [and] promote universal broadband” and
will “stymie the deployment of 5G networks, leaving California
unable to meet the growing need for wireless capacity created
by the proliferation of . . . connected devices.” This argument is
premised on a hypothetical future harm that is not cognizable
in a facial challenge. (Pacific Legal Foundation v. Brown (1981)
29 Cal.3d 168, 180; see also Arcadia Unified School Dist. v. State
Dept. of Education (1992) 2 Cal.4th 251, 267.)
In sum, neither the plain language of section 7901 nor the
manner in which it has been interpreted by courts and the PUC
supports plaintiffs’ argument that the Legislature intended to
preempt local regulation based on aesthetic considerations. The
statute and the ordinance can operate in harmony. Section 7901
ensures that telephone companies are not required to obtain a
local franchise, while the Ordinance ensures that lines and
equipment will not unreasonably incommode public road use.14
14 We dispose here only of plaintiffs’ facial challenge and
express no opinion as to the Ordinance’s application. We note,
however, that plaintiffs seeking to challenge specific
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
20
B. The Ordinance Does Not Violate Section 7901.1
Plaintiffs next contend that, even if not preempted, the
Ordinance violates section 7901.1 by singling out wireless
telephone corporations for regulation. Section 7901.1 provides
in relevant part that, consistent with section 7901,
municipalities may “exercise reasonable control as to the time,
place, and manner” in which roads are “accessed,” and that the
control must “be applied to all entities in an equivalent manner.”
(§ 7901, subds. (a), (b), italics added.)
Before trial, the parties stipulated to the following facts.
First, that the City requires all utility and telephone
corporations, both wireless and non-wireless, to obtain
temporary occupancy permits to “access” public rights-of-way
during the initial construction and installation of equipment
facilities. These permits are not subject to aesthetic review.
Second, that the City requires only wireless telephone
corporations to obtain site-specific permits, conditioned on
aesthetic approval, for the ongoing occupation and maintenance
applications have both state and federal remedies. Under state
law, a utility could seek an order from the PUC preempting a
city’s decision. (General Order 159A, supra, at p. 6.) Thus, cities
are prohibited from using their powers to frustrate the larger
intent of section 7901. (Pacific Telephone II, supra, 197
Cal.App.2d at p. 146.) Under federal law, Congress generally
has left in place local authority over “the placement,
construction, and modification of personal wireless service
facilities” (47 U.S.C. § 332(c)(7)(A)), but it has carved out several
exceptions. Among these, a city may not unduly delay decisions
(47 U.S.C. § 332(c)(7)(B)(ii)) and may not adopt regulations so
onerous as to “prohibit or have the effect of prohibiting the
provision of wireless services” (47 U.S.C. § 332(c)(7)(B)(i)(II)). If
a city does so, a wireless company may sue. (Sprint PCS Assets
v. City of Palos Verdes Estates, supra, 583 F.3d at p. 725.)
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
21
of equipment facilities in public rights-of-way. The trial court
and the Court of Appeal held that section 7901.1 only applies to
temporary access to public rights-of-way, during initial
construction and installation. Because the parties had
stipulated that the City treats all companies equally in that
respect, the lower courts found no violation of section 7901.1.
Plaintiffs argue the plain language of section 7901.1 does
not limit its application to temporary access to public rights-ofway.
Rather, the introductory phrase, “consistent with section
7901,” demonstrates that section 7901.1 applies to both shortand
long-term access. Plaintiffs also suggest that the legislative
history of section 7901.1 supports their position, and that the
lower courts’ interpretation of section 7901.1 “results in an
incoherent approach to municipal authority.”
Plaintiffs’ arguments are unpersuasive. Section 7901.1
allows cities to control the time, place, and manner in which
roads are “accessed.” (§ 7901.1, subd. (a).) As the competing
arguments demonstrate, the “plain meaning of the word
‘accessed’ is ambiguous.” (T-Mobile West, supra, 3 Cal.App.5th
at p. 358.) It could refer only to short-term access, during the
initial installation and construction of a telephone equipment
facility. But it could also refer to the longer term occupation of
public rights-of-way with telephone equipment. (Ibid.) Though
it would be odd for a statute authorizing local control over
permanent occupations to specifically allow for control over the
“time” of such occupations, the statute’s plain language does not
render plaintiffs’ construction totally implausible.
However, the legislative history shows that section 7901.1
only deals with temporary access to public rights-of-way. “This
bill is intended to bolster the cities[’] abilities with regard to
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
22
construction management . . . .” (Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Sen. Bill No. 621 (1995–
1996 Reg. Sess.) as amended May 3, 1995, p. 3, italics added.)
Before section 7901.1’s enactment, telephone companies had
been taking the “extreme” position, based on their statewide
franchises, that “cities [had] absolutely no ability to control
construction.” (Assem. Com. on Utilities and Commerce, Rep.
on Sen. Bill No. 621 (1995–1996 Reg. Sess.) as amended July 7,
1995, p. 2.) Section 7901.1 was enacted to “send a message to
telephone corporations that cities have authority to manage
their construction, without jeopardizing the telephone
[corporations’] statewide franchise.” (Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 621
(1995–1996 Reg. Sess.) as amended May 3, 1995, p. 3.) Under
section 7901.1, cities would be able to “plan maintenance
programs, protect public safety, minimize public inconvenience,
and ensure adherence to sound construction practices.” (Assem.
Com. on Utilities and Commerce, Rep. on Sen. Bill No. 621
(1995–1996 Reg. Sess.) as amended July 7, 1995, p. 2.)
To accept plaintiffs’ construction of section 7901.1, we
would have to ignore this legislative history. (T-Mobile West,
supra, 3 Cal.App.5th at p. 358.) Contrary to plaintiffs’
argument, construing section 7901.1 in this manner does not
render the scheme incoherent. It is eminently reasonable that
a local government may: (1) control the time, place, and manner
of temporary access to public roads during construction of
equipment facilities; and (2) regulate other, longer term impacts
that might incommode public road use under section 7901.
Thus, we hold that section 7901.1 only applies to temporary
access during construction and installation of telephone lines
T-MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO
Opinion of the Court by Corrigan, J.
23
and equipment. Because the City treats all entities similarly in
that regard, there is no section 7901.1 violation.
Outcome: The judgment of the Court of Appeal is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: