by Joel Ellinwood, AICP Ninth Circuit Prohibits Aesthetic Regulation of Cell Towers in Public Rights-of-Way Based on California Public Utilities Code In a unique twist to the preemption argument based on conflicts between the federal Telecommunications Act of 1999 (“TCA”) and state and local land use powers, the United States Court of Appeals for the 9th Circuit held that California Public Utilities Code section 7901 permitting installation of telephone facilities in public rights-of-way bans local governments from denying applications for cell phone facilities based on aesthetic considerations. Sprint PCS Assets LCC v. City of La Ca�ada-Flintridge, 2006 U.S.App.Lexis 1032 (9th Cir. 2006). The TCA explicitly allows local governments to apply traditional land use powers in regulating wireless telecommunications facilities. In applying those powers, local governments may not use health effect concerns about radio signals if the applicant demonstrates that the facility complies with Federal Communications Commission safety standards, discriminate between functionally equivalent service providers, or effectively frustrate provision of telecommunications services. The various Circuit Courts of Appeals have applied the TCA limitations inconsistently, but all apply the generally deferential “substantial evidence” standard of review. The 9th Circuit recently adopted a pragmatic but fact-intensive approach in MetroPCS v. City & County of San Francisco, 400 F3d 715 (2005) (click here to read Abbott & Kindermann’s July 2005 article on the case). In litigation throughout the United States wireless communications providers (cell phone companies) have struggled with local land use regulations that make construction of cell phone radio transmission towers extremely difficult, time-consuming and expensive, if not impossible. Frequently local ordinances require issuance of conditional use or other special permits establishing standards with very broad discretionary authority, including aesthetic or visual impact considerations. Very frequently neighborhood and other groups object to granting permits for cell towers – a classic Locally Unwanted Land Use (LULU) that brings out the NIMBYs (Not In My Back Yard) in force. Today almost everyone uses cell phones and expects good service, but very few people want the facilities necessary to provide that service anywhere near them. Frequently the strongest motivation for opposition is health impact concerns even at exposure levels permitted by FCC standards, despite the general scientific consensus that no significant basis exists for these fears. Since the TCA preempts local health and safety laws on this issue, many other largely pretextual rationales have been applied to deny permits and appease public opposition. This is not to say that many cell towers are unsightly, but less obtrusive design options are available. Still, opposition on supposedly aesthetic grounds lead to permit denials even when the facilities are integrated with existing structures (e.g. utility towers or athletic field light standards) or are camouflaged or hidden from view (e.g. behind artificial parapet walls or other architectural features). Sprint creatively reached back for an “old technology” solution, originally designed to accommodate traditional wired telephone service. Sprint filed applications with the City to construct facilities within public rights of way. Public Utilities Code section 7901 permits “telegraph or telephone corporations” to construct lines, posts, piers or abutments and other necessary fixtures along or upon any public road or highway, in a manner as “as not to incommode the public use of the road or highway.” The Court of Appeal agreed that “incommodation” of public use includes only functional interference with the time, manner and place that rights of way are accessed and not aesthetic considerations. Without substantial evidence that the cell facility was so unsightly or distracting as to prevent use of the road for travel, aesthetics may not be considered. Public Utilities Code section 7901 only applies to wireless facilities in public road or highway rights of way. To date the vast majority of cell towers are located on private property or public property not within a right of way. Given the preemptive power of Section 7901, limiting local discretion to time, manner and location of access, we can expect many new applications for wireless facilities in public rights of way. Section 7901 would have not effect on aesthetic limitations established outside public road or highway rights of way. Many jurisdictions have adopted land use regulations that require power, telephone, cable or other utilities to be placed underground in public rights of way or public utility easement areas, apparently without significant opposition from these traditional wire line utility service providers. Section 7901 seems anachronistic from that perspective, but it has taken an unexpected new relevance in today’s wireless world. Next, we can expect to be tracking the inevitable plethora of bills introduced in the legislature to repeal or amend section 7901. Joel Ellinwood, AICP is a senior associate with Abbott & Kindermann, LLP. Previously in his career he spent three years as a full-time consultant in site acquisition and permitting for wireless service providers including Sprint and Verizon Wireless. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.