Sprint Telephony v. Co. of San Diego 6/20/06 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D045957

Case Date: 09/13/2006

Preview:Filed 6/20/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

SPRINT TELEPHONY PCS, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents.

D045957

(Super. Ct. No. GIC813987)

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

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 2

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." 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

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.] [

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