It is absurd to contend that the installation of telephone poles and lines, under the control by the city of their location and manner of construction, is such an "incommodation" as to make section inapplicable. "Obviously, the Legislature in adopting section knew that the placing of poles, etc., in a street would of necessity constitute some incommodity to the public use, but the restriction necessarily is limited to an unreasonable obstruction of the public use.
City and County of San Francisco, which rejected the rationale used by the 9th Circuit in holding that: In support of its finding, the court asserted that the public rights-of-way may be employed to serve “social expressive and aesthetic functions.” In reaching this holding, however, the court failed to address contrary holdings by California courts-most notably, the California Court of Appeals’ 1961 decision in Pacific Tel. In doing so, the court focused on the fact that section 7901 provides telecommunications carriers rights to construct facilities in rights-of-way only to the extent such construction does not incommode the public use and upheld the City’s determination that traveling on a street that included wireless facilities would incommode the public use. The 9th Circuit held that section 7901 did not prevent the City from denying wireless deployments in the public rights-of-way under a local ordinance that permitted denial based on aesthetic concerns. Sections 79.1 provide (respectively) that telecommunications companies enjoy a right to construct communications facilities, which includes wireless, “in such a manner and at such points as not to incommode the public use of the road or highway” 4 and 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.” 5 The 9th Circuit held that the California Constitution gives the City authority to regulate local aesthetics and that neither section 7901 nor section 7901.1 divests it of that authority. In considering whether the City’s decision was authorized by local law, the court examined the impact of Cal. § 332(c)(7)(B)(iii) 3 as: (1) whether the City’s decision was authorized by local law and, if it was, (2) whether it was supported by a reasonable amount of evidence (“ MetroPCS Test”). City & County of S.F., 2 the 9th Circuit stated the test for determining whether the City’s denial violated 47 U.S.C. In reaching that holding, the court also concluded that neither California Public Utilities Code section 79.1 precluded the City from denying Sprint’s permit applications based on aesthetic concerns.Ĭiting its decision in MetroPCS, Inc. (“Sprint”) applications to construct wireless facilities in the public rights-of-way based on aesthetic considerations. § 332(c)(7) of the Telecommunications Act did not prohibit the City of Palos Verdes Estates (“City”) from denying two Sprint PCS Assets, L.L.C. District Court for the Central District of California finding that 47 U.S.C. 14, 2009, the 9th Circuit Court of Appeals reversed a judgment of the U.S.
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