The federal Ninth Circuit Court of Appeals has ruled that neither California law nor the federal Telecommunications Act prevent local governments “from taking into account aesthetic considerations in deciding whether to permit” the development of wireless telecommunications facilities, such as cell towers. (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, et al., 9th Cir. No. 05-56106, October 14, 2009.) The court also applied its own recent change of the law under Section 253(a) of the federal Telecommunications Act, that “a plaintiff suing a municipality . . . must show actual or effective prohibition, rather than the mere possibility of prohibition” of the deployment of competitive wireless services (Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.2d 571, 578 (9th Cir. 2008).)
Of perhaps even greater significance, the Ninth Circuit adopted its own interpretation of California state law that at least in federal court, state-certificated communications providers authorized to use private easements and rights-of-way by virtue of state franchises, and thus subject to local “time, place and manner” ROW regulation under Public Utilities Code Sections 7901 and 7901.1, may be subject to aesthetic review in local permitting because aesthetics are an aspect of “manner.” The Ninth Circuit’s opinion is dismissive of concerns that localities will simply block or torment communications service providers, quoting an Austrian city planner’s 1889 paean to “picturesque” cities threatened by technology, and using dictionary definitions to stretch ROW access “manner” regulation to consider the “distress” and “discomfort” of traveling down the street past a wireless facility. Returning to conventional legal analysis, the court offers the finite assurance that “a city that invokes aesthetics as a basis for [wireless] permit denial is required to produce substantial evidence to support its decision, and, even if it makes that showing, its decision is nevertheless invalid if it operates as a prohibition on the provision of wireless service in violation of 47 U.S.C. Section 332(c)(7)(B)(i)(II).” In the same opinion, the court finds that the city’s denial of wireless permits was adequately grounded in substantial evidence, quoting approvingly for example the letter from a local resident urging the city to deny the permits on aesthetic grounds, consistent with the wisdom of existing city aesthetic policies prohibiting both sidewalks and streetlights.
Last week’s Palos Verdes Estates decision involved only wireless telecommunications facilities (such as cell sites), and therefore may be distinguishable for other public right-of-way users under PUC Sections 7901 and 7901.1, such as telephone corporations, other wireline telecommunications providers, and state cable television franchisees. However it is to be expected that local cities, counties and agencies may find new occasions to emphasize aesthetic considerations in local permits for street, easement and right-of-way access such as for vaults, pedestals, poles and other above-ground facilities. This may require more coordination and local community relations efforts in response, as well as greater legal scrutiny of the “substantial evidence” supporting a permit denial, and challenges to arbitrary and capricious permit decisions based on aesthetic criteria. Since wireline phone and cable television facilities lack the “effective prohibition” protection that wireless enjoys, the Palos Verdes Estates interpretation of state ROW access may also be distinguishable on that basis among others.