A California appeals court upheld a decision granting local governments in that state relatively broad aesthetic control over small cells and other wireless structures in public rights-of-way.
T-Mobile, Crown Castle and ExteNet initially brought a suit against the city and county of San Francisco, claiming the municipality couldn’t require permits or review sites based on state law. A trial court ruled in favor of the city, claiming that it could prohibit specific installments for aesthetic reasons.
At the heart of the case is an ordinance adopted by San Francisco in 2011 that requires companies to obtain a permit before installing or modifying any wireless facility in the public right-of-way. “The City does not intend to regulate the technologies used to provide personal wireless services,” the ordinance reads. “However, the City needs to regulate placement of such facilities in order to prevent telecommunications providers from installing wireless antennas and associated equipment in the City’s public rights-of-way either in manners or in locations that will diminish the City’s beauty.”
T-Mobile argued that the ordinance was in conflict with a state public utility code that allowed telecoms to construct and maintain lines on public roads and highways “in such manner and at such points as not to incommode the public use.”
The case underscores the growing tensions between some municipalities and telecoms looking to build out their networks with small cells and other transmitters. Small cells are widely viewed as a crucial component for wireless carriers as data consumption continues to ramp up, particularly in densely populated areas.
The haste to roll out small cells has resulted in pushback from some municipalities. For instance, The Wall Street Journal reported in June that Sprint’s efforts to deploy as many as 70,000 of the transmitters across the country had been delayed due in large part to trouble obtaining permits.
Some of that pushback has clearly been warranted given reports of vendors installing small cells without permits or that are simply eyesores. But vendors must also overcome hurdles such as a not-in-my-backyard mentality from residents or recent moves by local governments to hike permitting fees in an effort to cash in on the trend in the short term.
The FCC appears set to intervene on the issue to help iron out differences between municipalities and carriers. Commissioner Ajit Pai recently suggested the FCC could go so far as to impose penalties on localities that make small cell deployments difficult, citing the Commission’s adoption of rules that made clear its “shot clock” for towers also applies to small cells, allowing deployments to begin if municipalities don’t act on applications in a timely manner.
“It seems to me that if we have the authority to implement the shot clock, we have the authority to make sure there are consequences” when local authorities are unresponsive, Pai said during an event last week at CTIA Super Mobility 2016 in Las Vegas.
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