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The Local Threat to Wireless Technology
The Local Threat to Wireless Technology

Across the nation, pitched battles are being waged in city streets. On one side are the wireless telecommunications companies, trying to fulfill their mandate under the federal Telecommunications Act of 1996 to provide seamless wireless coverage nationwide by rapidly deploying their facilities in the public rights-of-way. On the other side are the county and municipal governments that seek to use their land use powers to control what goes in their streets and highways.

In some instances, local governments have asserted their regulatory powers to completely ban the installation of any wireless facilities in their streets. Among other things, they cite aesthetic and neighborhood compatibility concerns and the unholy specter of roads bristling with poles and antennas as the "wireless revolution" unfolds. In response, the wireless companies have cried foul, citing the Telecom Act's restrictions on local control over the use of public rights-of-way by wireless providers.

While the courts have weighed in on the issue in a general sense, and have uniformly pronounced anathemas on burdensome local franchise requirements and regulations vesting unfettered discretion to veto permit applications, the courts have yet to more precisely define the metes and bounds of land use authority left to local governments in the public rights-of-way.

Put in more concrete terms, does the Telecom Act allow cities to require proposed wireless facilities to pass muster under locally adopted aesthetic and neighborhood compatibility standards? Or should the Telecom Act's controls be read more restrictively to liberally allow wireless telecommunications companies to free use of the right-of-way, with local authority limited to governing only the time, place, and manner of construction of wireless facilities?

The Telecom Act
In 1996, President Bill Clinton signed the federal Telecom Act into law. At the signature ceremony, Clinton said the Act was "truly revolutionary legislation that [would] bring the future to our doorstep." The law has two major goals: (1) to encourage competition among wireless telecommunications service providers, thereby driving down the costs of technology; and (2) to reduce regulation for the purposes of encouraging the "rapid" deployment of a seamless, nationwide wireless network.

In furtherance of these goals, section 253 of the Act is designed to eliminate state and local barriers to the provision of telecommunications services. Specifically, section 253 states that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."

But this prohibition, sometimes referred to as the "prohibition on prohibitions," has an important qualifier. Subdivision (c) of section 253 leaves to local governments the authority to "manage" their public rights-of-way on a "non-discriminatory basis."

Unfortunately, the Telecom Act does not provide a definition of the term "manage," and therefore gives little guidance on how such management can take place without disturbing the goals of the Telecom Act.

Since the term "manage" is subject to a considerable range of interpretations, the "safe harbor" of subdivision (c) has left a mighty wake for the courts to fill. In a recent case, City of Auburn v. Qwest Corp., the Ninth Circuit Court of Appeals tackled the issue of what "management" of the public rights-of-way means in the context of permitting for wireless facilities.

The court was not without guidance. It first looked to the legislative history of subdivision (c). There it found a statement from Senator Dianne Feinstein during the floor debate on the bill. The senator offered the following examples of legitimate right-of-way management: (1) "regulate the time or location of excavation to preserve effective traffic flow, prevent hazardous road conditions, or minimize notice impacts;" (2) "require a company to place its facilities underground, rather than overhead, consistent with the requirements imposed on other utility companies;" (3) "require a company to pay fees to recover an appropriate share of the increased street repair and paving costs that result from repeated excavation;" (4) "enforce local zoning regulations;" and (5) "require a company to indemnify the City against any claims of injury arising from the company's excavation."

The court also looked to a regulatory guidance of the Federal Communications Commission, which declared that right-of-way management means that local governments "must be allowed to perform the vital tasks necessary to preserve the physical integrity of streets and highways, to control the orderly flow of vehicles and pedestrians, to manage gas, water, cable ... and telephone facilities ... ." As the City of Auburn court noted, the section 253(c) ultimately means that local governments have "control over the right-of-way itself, not control over companies with facilities in the right-of-way."

The court's articulation of this bright-line rule allowed it to strike down any local provision that clearly constituted a regulation of the company, as opposed to the public right-of-way. The court disapproved: (1) extensive permit application processes requiring the company to supply technical specs and financial information; (2) ordinances requiring disclosure of company share transfers; (3) requirements that companies provide best available rates and terms; and (4) ordinances vesting unfettered discretion to grant, deny, or revoke a franchise on the basis of unnamed terms.

In response to an argument that any of these requirements could have a logical connection to the management of the public right-of-way, the court said that such a "semantic two-step" would have no limiting principle and "would swallow whole the broad congressional preemption."

Statewide Franchise Laws
Juxtaposed against the federal restrictions on the regulation of wireless companies are a number of older state laws that preempt local land use controls where telephone corporations seek to install their facilities in the public right-of-way. In the City of Auburn case already discussed, the Ninth Circuit encountered such a law, promulgated by the Washington State legislature. The law granted a statewide franchise (which, in the land use context, means a privilege to use sovereign property) allowing all telecommunications companies to occupy the public right-of-way without having to comply with municipal right-of-way access requirements. The court declined the invitation to weigh in on these state laws, and, instead, focused on the federal elements of the case.

A number of other states, including California, Ohio, Montana, Missouri, Michigan, Kansas, and Idaho, have enacted such statewide franchise laws. But no federal court has conducted a careful analysis of how such laws work vis-à-vis the Telecom Act.

In California, the statewide franchise law appears to give very wide berth to telecommunications companies to enter the public streets and highways without local interference. In fact, the California statewide franchise law may be read in a manner that restricts local authority only to controlling the time, place, and manner of construction activities. If the courts ratify this interpretation, state laws may impose even more restrictive controls on local agencies than the Telecom Act.

The Future
While local governments and the wireless industry may differ on the practical effect of both state franchise rights and the restrictions of the Telecom Act, none seriously deny that both work to strictly limit land use authority in the public right-of-way. Nevertheless, as in many of the cutting edge tech sectors of the day, new wireless technologies are developing far more rapidly than the glacial pace of the legislative and judicial processes.

While the courts have established clear benchmarks on the legal landscape, many local governments perceive enough legal terra incognita to thwart the deployment of new wireless technologies by subjecting permit applicants to purely subjective aesthetic criteria.

While, ordinarily, aesthetics and neighborhood compatibility may qualify as legitimate hallmarks of local land use planning, such considerations, in the wireless context, can too easily serve as a proxy for less savory motivations, such as prejudices against the wireless industry based on the perceived health effects of radio frequency emissions - an issue the Telecom Act unequivocally forbids local governments to consider.

Aesthetic considerations may have some place in the approval process, but they cannot serve as a basis to deny permits or mire permit applications in endless deliberations regarding what constitutes the design best suited to the character of a given neighborhood. In short, making approvals contingent on such standards vests too much discretion in local governments.

Ultimately, either the courts or Congress will provide definitive guidance on the precise metes and bounds of local land use authority over wireless providers in the public right-of-way. Until then, many cities and counties have drawn the line in the sand and hold fast to their otherwise legitimate authority to constrain development according to their locally promulgated aesthetic standards.

The unhappy result is the undermining of the Telecom Act's goal to facilitate the accelerated development of seamless and affordable wireless service nationwide. Clearly, Congress did not intend such local practices to, as the Ninth Circuit characterized it, "swallow whole" the broad federal preemptions of the Telecom Act.

About Michael Shonafelt
Michael Shonafelt is an attorney in the Los Angeles office of the law firm of NParker Milliken. He practices in the areas of environmental, land use, and political law. His experience includes representation of wireless telecommunications companies in matters pertaining to land use entitlements and the Telecommunications Act of 1996.

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