SPRINT TELEPHONY PCS v. COUNTY OF SAN DIEGO

Filed 6/20/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Hayes, Judge. Affirmed.

Buchanan Ingersoll, Daniel T. Pascucci and Nathan R. Hamler for Plaintiff and Appellant.

Ledoux Esquire Inc., Stephen R. Ledoux and Andrew D. Mastin for T-Mobile USA, Inc., as Amicus Curiae on behalf of Plaintiff and Appellant.

John J. Sansone, County Counsel, and Thomas D. Bunton, Senior Deputy County Counsel, for Defendants and Respondents.

Jennifer B. Henning for California State Association of Counties, as Amicus Curiae on behalf of Defendants and Respondents.

Dennis J. Herrera, City Attorney (San Francisco), Burk E. Delventhal, Chief Government Team Deputy, Owen J. Clements, Chief of Special Litigation, Theresa L. Mueller, Chief Energy and Telecommunications Deputy, and William K. Sanders, Deputy City Attorney, for League of California Cities and City and County of San Francisco as Amicus Curiae on behalf of Defendants and Respondents.

Local governments, reacting to the rapid expansion of wireless cellular communications and accompanying infrastructure, have adopted ordinances to regulate the placement and aesthetics of wireless cellular telephone towers and ancillary equipment through a discretionary permitting process. The Wireless Telecommunications Ordinance (WTO) adopted by defendant County of San Diego (County), the enforceability of which is challenged in this appeal by plaintiff Sprint Telephony PCS, L.P. (Sprint), prescribes an approval process for applications to install cellular telephone infrastructure, including equipment that will be installed in a public right of way (ROW) within County's jurisdiction. In this action, Sprint argues the WTO is invalid under Public Utilities Code section 7901,^[1] asserting that section 7901 prevents local governments from regulating the installation of telecommunications equipment in the ROW except insofar as is necessary to accommodate the public's right to use the ROW.^[2] County contends the rights conferred by section 7901 do not apply to cellular telephone equipment at all, or alternatively, the statutory scheme preserves to local governments the power to regulate the location and appearance of equipment placed in the ROW. The trial court upheld the validity of the WTO, and this appeal followed.

I

FACTUAL BACKGROUND

A. The Relevant Statutory Scheme

Section 7901 provides:

"Telegraph or telephone corporations may construct lines of telegraph or 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 the navigation of the waters."

The language of section 7901 has evolved to reflect some of the technological advances in communications. "The predecessor of [section 7901], Civil Code section 536, was first enacted in 1872 as part of the original Civil Code. [Citation.] The language was identical to the current section except that there was no reference to telephone corporations reading ' "Telegraph corporations may construct lines of telegraph along and upon," etc.' [Citation.] The reason for this omission was that the telephone was completely unknown in 1872, not having been invented until 1875. [Citation.] [¶] In 1905, Civil Code section 536 was re-enacted to add telephone corporations and telephone lines to the statute. [Citation.] In 1951, Civil Code section 536 became [section 7901]. The language of section 7901 remains as it was in 1905." (Anderson v. Time Warner Telecom of California (2005) 129 Cal.App.4th 411, 419.)

The Public Utilities Code, of which section 7901 is a part, has also undergone an evolutionary process. Shortly after telephone corporations and telephone lines were added to section 7901's predecessor statute, the California Constitution was amended to vest in the Public Utilities Commission (PUC) "the exclusive jurisdiction to supervise and regulate public utilities." (Pacific Tel. & Tel. Co. v. City of Los Angeles (1955) 44 Cal.2d 272, 280.) Thereafter, the Legislature in 1915 enacted the Public Utilities Act, which required among other things that (1) a telephone corporation that sought to construct telephone lines would first be required to obtain a "certificate [of] public convenience and necessity" (CPCN) from the PUC (Public Utilities Act § 50, subd. (a), (Stats. 1915, p. 148)(repealed)), and (2) a telephone corporation that sought to exercise the right to a franchise would first be required to obtain a CPCN from the PUC (id. at subd. (b)). The Public Utilities Act, providing definitions for terms "when used in this act," defined a telephone corporation as every corporation owning or operating a telephone line within the state for compensation (id. at § 2, subds. (a), (t)), and defined a telephone line to include "all conduits, ducts, poles, wires, cables, instruments and appliances, and all other real estate, fixtures, and personal property owned, controlled, operated or managed in connection with or to facilitate communication by telephone . . . ." (Id. at § 2, subds. (a), (s).) The absence of any reference to wireless communications from the initial definition of telephone corporations or telephone lines is understandable because wireless forms of communication were then in their infancy.^[3]

In 1951, the Legislature repealed the Public Utilities Act and incorporated many of its provisions into Part 1 of the Public Utilities Code. (See Stats. 1951, ch. 764, § 201 et seq., p. 2027 et seq.) The Legislature continued the requirement that a telephone corporation seeking to embark on new service first obtain a CPCN from the PUC. (§ 1001.) The new law, which provided that many definitions imported from the former Public Utilities Act would "govern the construction of [Part 1 of Division 1 of the Public Utilities Code]" (§ 203), imported without change the definition of a telephone corporation formerly contained in the Public Utilities Act. (§ 234.) The Legislature also imported the definition of a telephone line formerly contained in the Public Utilities Act, but amended that definition to add the clause "whether such communication is had with or without the use of transmission wires."^[4] (§ 233.)

As part of the same enactment, the Legislature also moved former Civil Code section 536 into Division 4 of the Public Utilities Code. Former section 536 became section 7901 without any change to the statutory language. (See Stats. 1951, ch. 764, p. 2194, § 7901.)

In 1995, the Legislature adopted section 7901.1, which specified it was "the intent of the Legislature, 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." (Stats. 1951, ch. 764, § 7901, subd. (a), p. 2194.)

B. The County's WTO

General Requirements

In 2003 County enacted the WTO, the stated purpose of which is "to establish comprehensive guidelines for the placement, design and processing of wireless telecommunications facilities in all zones within the County of San Diego." The WTO, which added sections 6980 through 6991 to County's Zoning Ordinance (ZO), establishes a four-tier structure for processing applications for the installation of wireless facilities. (ZO § 6985.) Tier 1 applies to applications for wireless facilities that are invisible or have very low visual impacts. Tier 2 applies to applications for low visibility facilities in commercial, industrial or special purpose zones, or to facilities in any of the zones that are covered by a "Wireless Community Master Plan" (ZO §§ 6985, 6983). Tier 4 applies to noncamouflaged towers greater than 60 feet in height, or 15 feet above the maximum height limit in the zone, whichever is lower, and all facilities in residential and rural zones except those within Tiers 1 and 2. Tier 3 is a residual category that applies to all facilities other than those meeting the criteria of Tiers 1, 2, or 4. (ZO § 6985.) The WTO's permitting process applies to applications to install wireless facilities in a ROW.

The WTO requires all applicants to submit detailed information regarding the proposed wireless facility. Among other things, applicants are required to provide: (1) a map showing all the applicant's existing sites in the local service network associated with the gap the facility is meant to close (ZO § 6984(A)); (2) a visual impact analysis (including photographic simulations) showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening (id. at subd. (B)); (3) evidence that establishes the proposed facilities have been designed to the minimum height required from a technological standpoint for the proposed site (subd. (C)(1)); (4) the anticipated maintenance and monitoring program for the antennas, back-up equipment and landscaping (subd. (C)(2)); (5) noise and acoustical information (subd. (C)(3)); (6) a plan showing all proposed landscaping, screening and proposed irrigation (subd. (C)(5)); and (7) a letter stating the applicant's willingness to allow other carriers to co-locate on their facilities (subd. (C)(9)). Furthermore, County may "require additional information based upon specific project factors." (Id. at § 6984.)

The WTO also imposes general and design regulations, including the requirements that the facilities be "camouflaged" in residential and rural locations, and be designed to visually blend into the surrounding area in a manner "consistent with community character and existing development," to be "compatible with existing architectural elements, building materials and other site characteristics," and to have minimal "visual impact." (ZO §§ 6985(C)(1), 6987(B), (F), (O).) The WTO also articulates a setback requirement that, "Telecommunications towers located adjacent to a residential use shall be set back from the nearest residential lot line by a distance at least equal to its total height or 50 feet, whichever is greater."^[5] (ZO § 6985(C)(4).)

Application Structure

Applications under Tier 1 are processed as administrative site plans, reviewed by the Director of the Department of Planning and Land Use (Director). (ZO § 6985(A).) Applications under Tier 2 are processed similarly to Tier 1 applications except they are also subject to review by the appropriate citizen's advisory board, which makes a nonbinding recommendation regarding the application. (ZO §§ 6985(A), 7157.) The Director's decisions on Tier 1 and 2 applications are appealable to the Planning Commission. (ZO § 7166.)

Applications under Tiers 3 and 4 are processed as minor use permits and major use permits, respectively, and must comply with the generalized requirements of sections 7350 through 7388 of County's Zoning Ordinance, which govern all applications for use permits. Applications for minor or major use permits (e.g. Tiers 3 and 4 applications) require the applicant to submit documents including: a list of the names of all persons having an interest in the application (as well as the names of all persons having any ownership interest in the property involved); complete plans (including a plot plan); and a description of the property involved and the proposed use permit. (ZO § 7354(b)(1)-(2).) All applications for a use permit are subject to a public hearing requirement. (ZO § 7356.) In determining whether to grant a use permit, the Planning Commission (or the Director, in the case of a minor permit) is required to find that the "location, size, design, and operating characteristics of the proposed use will be compatible with adjacent uses, residents, buildings, or structures . . . ."^[6] (ZO § 7358(a).)

Use permits may be granted or modified "subject to the performance of such conditions . . . and for such period of time as the Planning Commission, the Board of Supervisors . . . or the Director . . . shall deem to be reasonable and necessary or advisable under the circumstances so that the objectives of the Zoning Ordinance shall be achieved." (ZO § 7362.) A use permit may be revoked or modified if one or more of the conditions upon which such permit was granted have been violated. (ZO § 7382(a)(2).) A major use permit decision may be appealed to the Board of Supervisors. (ZO § 7366(a)(1)), and a minor use permit decision may be appealed to the Planning Commission. (ZO § 7366(a)(2).) Following the filing of an appeal, a public hearing shall be scheduled and noticed and all interested persons may appear and present evidence. (ZO § 7366(h).) The authority with appellate jurisdiction may grant or modify the use permit subject to specified conditions it may impose under section 7362 or it may revoke or deny the use permit "as is appropriate." (ZO § 7366(i).)

C. Additional Factual Background

In the 15 months between the time the WTO became effective and County filed its opposition to Sprint's summary judgment motion, 71 applications for placement of wireless facilities had been submitted, six of which sought to place wireless facilities in the ROW. All of the ROW applications have been subjected to tier 4 review, with none yet approved. Utility providers other than wireless telecommunication providers seeking County approval for permits to place above-ground equipment in the ROW are not subject to the WTO permitting processes.

II

THE PRESENT ACTION

Sprint filed this action asserting the WTO was invalid. Sprint moved for summary judgment asserting section 7901 granted it a franchise to install wireless telecommunications facilities in the ROW and the WTO was invalid because it infringed on the rights conferred on Sprint by section 7901 and exceeded the limited authority reserved to local governments under sections 7901 and 7901.1. County's motion for summary judgment asserted (1) section 7901 does not apply to wireless telecommunication providers and equipment and (2) even if Sprint qualified as a provider under section 7901, the WTO was a permissible regulatory scheme under sections 7901 and 7901.1.

The trial court agreed with County's contentions, concluding the rights conferred by section 7901 were intended to inure only to those telephone corporations that construct and operate telephone landlines, and Sprint's wireless telecommunications facilities and equipment did not qualify as telephone lines within the ambit of section 7901. The court also concluded, although Sprint qualified as a "telephone corporation" (under section 234) for purposes of the provisions of Division 1 of the Public Utilities Code, section 234 did not thereby qualify Sprint as a "telephone corporation" for purposes of Division 4 (of which section 7901 was a part) of the Public Utilities Code. The court alternatively concluded that, even if Sprint qualified as a telephone corporation for purposes of section 7901, the WTO was valid because section 7901.1 recognizes the right of municipalities to exercise reasonable controls over the "time, place and manner" by which telephone corporations use the ROW to install and operate their facilities. Accordingly, the court concluded the WTO, which employs the permitting process to regulate the place (location of the equipment) and manner (the appearance and characteristics of the equipment) in which wireless providers use the ROW, was authorized by sections 7901 and 7901.1.

III

STANDARD OF REVIEW

Because we are called upon to construe a statutory scheme, we accord no deference to the trial court's determination. Instead, we apply de novo review to the issues posed by this action.^[7] (Radian Guaranty, Inc. v. Garamendi (2005) 127 Cal.App.4th 1280, 1288.)

IV

ANALYSIS

This appeal requires resolution of two issues: do wireless telecommunications providers enjoy the privileges conferred by section 7901 to install necessary equipment in a ROW and, if so, does the scope of the privileges accorded by section 7901 preclude local governments from imposing design and siting restrictions when a wireless telecommunications provider exercises the privilege to place equipment in a ROW? Before addressing these issues, it is appropriate to examine briefly the scope of the privileges conferred by section 7901.

A. The Rights Conferred by Section 7901

The state has sovereign authority over public ROW's and retains the right to control those ROW's except insofar as constitutional or statutory provisions reserve or relinquish control to local authorities. (Western Union Tel. Co. v. Hopkins (1911) 160 Cal. 106, 118-119.) In Pacific Tel. & Tel. Co. v. City & County of San Francisco (1959) 51 Cal.2d 766, 771 (Pacific Tel. I), the court construed Section 7901 as constituting " 'a continuing offer extended [by the state] to telephone and telegraph companies . . . which offer when accepted by the construction and maintenance of lines' [citation] gives a franchise from the state to use the public highways for the prescribed purposes without the necessity for any grant [of a franchise] by a subordinate legislative body." Accordingly, section 7901 confers on telephone companies the right to use public rights of way to install lines and equipment without the necessity of seeking a separate franchise from local governments for that purpose (See City of Petaluma v Pacific Tel. & Tel. Co. (1955) 44 Cal.2d 284, 289 [city cannot compel telephone company to obtain a municipal franchise to use the streets and other public places for its lines and equipment]), subject to the proviso that such equipment must be installed in a "manner and at such points as not to incommode the public use" of a ROW. By virtue of section 7901, a local government may neither entirely bar a telephone company from installing necessary equipment in a ROW (Pacific Tel. I, supra, at p. 774), nor make the installation of such equipment conditional on payment of a fee except insofar as the fee is reasonably necessary to pay for the costs of mitigating or defraying the cost of any alleged impacts on public improvements or facilities. (Williams Communications v. City of Riverside (2003) 114 Cal.App.4th 642, 654-656.)

The rights conferred by section 7901, although broad, are not unlimited. Section 7901 itself delimits ROW rights by declaring telephone companies may not install equipment in a location or in a manner that obstructs public use of a ROW. Additionally, the Legislature's 1995 enactment of section 7901.1 confirmed that local governments were delegated the power to "exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed." (§ 7901.1, subd. (a); Pacific Tel. & Tel. Co. v. City & County of San Francisco (1961) 197 Cal.App.2d 133, 152 (Pacific Tel. II) ["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."].) Whether these qualifications on a telephone company's franchise to install equipment in a ROW are very narrow constraints, as contended by Sprint, or instead permit a local municipality to regulate installations in a ROW based on considerations beyond construction practices and possible interferences with travel along a ROW, as asserted by County, is addressed in part IV.C. of this opinion.

B. Section 7901 Confers Equivalent Privileges to Install Necessary Equipment in a ROW on All Telecommunications Providers

County asserts the WTO is valid because, even assuming the privileges conferred by section 7901 largely preempt local regulation of equipment placed in a ROW, Sprint is not eligible for those privileges because section 7901 is limited to "telephone corporations [that] construct . . . telephone lines" and Sprint does not install lines but instead builds wireless facilities in ROW's. Sprint counters that wireless equipment qualifies for the privileges bestowed by section 7901 because (1) statutes enacted concurrently with (and subsequent to) section 7901 confirm the Legislature intended wireless equipment qualified as a "line" under section 7901, (2) the courts have interpreted section 7901 to encompass advances in telecommunications technologies, and (3) Sprint does (even within the narrowest meaning of section 7901) install and employ "lines" to effectuate telephonic communication.

Story Continue in Part II …….

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Apartment Manager Lawyers.

^[1] All statutory references are to the Public Utilities Code unless otherwise specified.

^[2] Sprint does not in this proceeding contend the WTO is unenforceable insofar as it prescribes a permitting process for installing telecommunications equipment on property outside of public roads or highways. However, in a concurrent federal action (see Sprint Telephony PCS, L.P. v. County of San Diego (S.D.Cal. 2005) 377 F.Supp.2d 886), Sprint asserted the WTO is unenforceable in its entirety because it violates the Federal Telecommunications Act of 1996 (Pub.L. 104-104, 110 Stat. 56) (the TCA), and more particularly offends title 47 United States Code section 253, as a "local statute or regulation . . . hav[ing] the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." The federal district court, although acknowledging federal law permits local governments to impose aesthetic requirements or placement restrictions in the exercise of their zoning authority (see, e.g., Sprint PCS Assets, L.L.C. v. City of La Canada Flintridge (9th Cir. 2006) 435 F.3d 993, 998 [dicta]; APT Pittsburgh Ltd. v. Penn Township Butler County (3d Cir. 1999) 196 F.3d 469 [upholding validity of zoning ordinance restricting towers to certain districts in Township]), concluded the WTO was invalid because it prohibited or had the effect of prohibiting the provision of wireless service. Accordingly, the district court enjoined County from enforcing the WTO. (Sprint Telephony PCS, L.P. v. County of San Diego, supra, at p. 900.) However, County has appealed the decision to the Ninth Circuit Court of Appeals, and we take judicial notice (People v. $25,000 United States Currency (2005) 131 Cal.App.4th 127, 131) that the Ninth Circuit has stayed the district court's decision pending the appeal. In the present action, we are not called on to decide the federal preemption issue for the WTO as a whole, but instead must decide the limited issue of whether the WTO is enforceable under California law insofar as it applies to equipment to be installed in the ROW.

^[3] See John Shea, "Brief History of Wireless Communications" (Jan. 12, 2000), http://www.wireless.ece.ufl.edu/~jshea/eel6509/misc/history (as of May 16, 2006).

^[4] By 1949, the first interconnection of mobile users to a public switched telephone network had been accomplished and the FCC had recognized "mobile radio" as new class of service. (Shea, "Brief History of Wireless Communications," supra, http://www. wireless.ece.ufl.edu/~jshea/eel6509/misc/history (as of May 16, 2006).

^[5] The setback requirement, if enforced, would effectively preclude siting of wireless facilities in the ROW within residential areas because the 50-foot setback is ordinarily wider than the ROW. In the proceedings below, however, County disavowed any intent to apply the setback requirement to the ROW.

^[6] The determination of compatibility must consider such factors as harmony in scale, bulk, coverage and density; the availability of public facilities, services and utilities; the harmful effect, if any, on desirable neighborhood character; the generation of traffic and the capacity and physical character of surrounding streets; the suitability of the site for the type and intensity of use or development proposed; and any other relevant impact of the proposed use. (ZO § 7358.)

^[7] County has filed two requests for judicial notice and, except insofar as we have noted the Ninth Circuit's stay of the order in Sprint Telephony PCS, L.P. v. County of San Diego, supra, 377 F.Supp.2d 886, the requests are denied as moot.