Aesthetics have become one of the important issues that activists are using to fight 5G and other wireless facilities in neighborhoods. Aesthetics have been interpreted by the courts to mean more than just how something looks. They concluded that it can also include whether these facilities generate noise, cause negative health consequences, create safety concerns or disturb its "quiet enjoyment." This decision clearly undermines Wireless Carriers arguments that California Public Utilities Code Section 7901 restricts local authorities from rejecting antenna applications based on aesthetic concerns.
On April 4, 2019, the California State Supreme Court unanimously agreed that telecom companies have to abide by SF 2011 Ordinance which requires a permit for large cell tower placement and that local governments can deny a cell tower permit on the grounds of aesthetics. The Court issued an order providing a definitive interpretation that municipalities in California have the authority under Section 7901 of the California Public Utilities Code to deny wireless antenna siting applications on the basis of aesthetics, not physical interference with the road, as cellular carriers had argued.
Many local governments in California have interpreted CPU Code Section 7901 very narrowly and leaned heavily on wireless carriers interpretation. Wireless carriers have relayed that California Public Utilities Code Section 7901 gives them the authority and right to place their equipment in the public rights of way. They cite 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" and that the only grounds for denying access to a public right of way was if utility equipment would impede physical use of a road.
This precise issue was raised by T-Mobile v. San Francisco challenging San Francisco's wireless ordinance, which limits placement of wireless equipment based on aesthetics, San Francisco had argued that it is one of the world’s most beautiful cities and that requests to place antennas on poles in certain areas would diminish that beauty.
California’s highest court agreed. It held that the word “incommode” includes more than just physical alternations that would obstruct travel on a road, as T-Mobile had argued. Rather, that term may include consideration of whether equipment installed in the public right of way would be aesthetically intrusive. The California Supreme Court observed:
“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. 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.
The Court based its holding on municipalities’ “inherent local police power to determine the appropriate uses of land within its jurisdiction [which] . . . includes the authority to establish aesthetic conditions for land use.” These holdings by the California Supreme Court are directly relevant, and clearly undermine Wireless Carriers arguments that Section 7901 restricts local authorities from rejecting antenna applications based on aesthetic concerns.
Wireless carriers argue that state law is immaterial and that federal law supports their determination that Federal law supersedes State law. Such argument would be wrong. The FCC’s small cell order No. 18-133 establishes the time frame within which local jurisdictions must assess a wireless antenna application and limits the scope of issues a local jurisdiction may take into account. However, an order from a federal agency does not overturn or preempt state law or the orders of the California Supreme Court. A federal appeals court has held that neither the FCC nor the U.S. Congress for that matter has authority to enact local regulations. In Cablevision, Inc. v. Public Improvement Comm'n, the U.S. Court of Appeals for the First Circuit held that the federal legislature and agencies do not have the ability “to commandeer local regulatory bodies for federal purposes.”
Now that the California Supreme Court has ruled that Section 7901 does not entitle wireless carriers to place their equipment any place they demand, there is simply no basis for local communities to approve wireless antennas based on a belief that “their hands are tied”, or that they lack authority to determine the location of antenna siting based on aesthetics.
In a later determination of MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO. Defendants and Respondents. Decided: September 15, 2019 A144252, the court stated, “In general, courts are cautious in applying the doctrine of implied preemption: ‘[I]n view of the long tradition of local regulation and the legislatively imposed duty to preserve and protect the public health, preemption may not be lightly found.’ [Citation.] Where local legislation clearly serves local purposes, and state legislation that appears to be in conflict actually serves different, statewide purposes, preemption will not be found.” (San Diego Gas & Electric Co. v. City of Carlsbad, supra, 64 Cal.App.4th at p. 793.) and also
"The Ordinance unquestionably allows the City to condition approval of a particular Wireless Permit on aesthetic considerations…Plaintiffs’ position is that “incommode” means only physical obstruction of travel in the public right-of-way. The City, on the other hand, points out that the dictionary definition of “incommode” is broader and includes “inconvenience, discomfort, and disturbance beyond mere blockage.” (See Merriam Webster Online Dictionary … incommode> [as of Sept. 15, 2016] [defining “incommode” as “[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition”; denoting “less than annoy, vex or harass”; e.g., “We are incommoded by want of room to sit at ease”].) We must construe the statute.”
Judge Corrigan notes, “For our purposes, it is sufficient to state that the meaning of incommode has not changed meaningfully since section 7901’s enactment. 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,
All these impacts could disturb public road use, or disturb its quiet enjoyment.” These arguments can be used to legally allow cities to place cell towers such that they “DO NOT INCOMMODE THE PUBLIC”
Small Cell in Oakland/Piedmont border. Ancillary equipment behind fenced area.