Do cities in California have the right to adopt ordinances for aesthetic reasons? The answer to that question regarding the definition of public use will be decided by the state Supreme Court, who agreed unanimously yesterday according to the Chronicle that they would hear a case brought against the city of San Francisco by T-Mobile West. That case concerns telephone companies putting wireless antennas on utility poles, but the larger question of the rights of California cities and also questions about the future of wireless service are also at play.
The First District Court of Appeals in San Francisco decided this September three to nothing in favor of the San Francisco ordinance in question, one regulating where antennas can be installed. “San Francisco is widely recognized to be one of the world’s most beautiful cities” the Board of Supervisors wrote in passing that ordinance in 2011, and since then, telecom companies have needed to seek city permits before installing large antennas and other equipment. The ordinance just applies to companies like T-Mobile West, who brought suit, and not to utilities like PG&E or video providers including Comcast.
In 2014, T-Mobile West brought the case challenging the ordinance: California law, their lawyers argued, allows telecoms to put up any and all roadside equipment provided it doesn’t “incommode the public use” of roads. But Justice Bruiniers of the First District Court ruled that “incommode” didn’t just pertain to blocking physical access to cars, bikes, pedestrians, etc. Incommode, he wrote, had a more expansive definition. “Public use of the right of way is not limited to travel,” the justice wrote.
But the stakes for T-Mobile and other companies is high according to Bloomberg BNA, as it would “have a major impact on the roll-out of 5G networks.” Those 5G networks are critical for the infrastructure of the “internet of things,” in which devices are interconnected, and a robust internet of things could also benefit cities, with improved “smart city” transit solutions, for example.
But as one wireless telecom attorney and engineer, Jonathan L. Kramer explained to Bloomberg, there’s a trade off — to function, 5G networks need their wireless equipment to be very close in proximity to their end users. “If you’re a business or a residence user, that means the cell sites are going to be in the public right of way, Kramer said. Therefore, “Access to the public right of way is the absolute ‘Holy Grail’ for 5G and beyond, because distance matters. Reducing distance matters even more,” he said. The case is T-Mobile West vs. San Francisco, S238001.