New state high court justice grills lawyers in telecom’s fight with city

Four days after taking the oath, new state Supreme Court Justice Joshua P. Groban sat in on oral arguments for the first time, hearing a case about whether San Francisco can regulate the appearance of cell phone towers.

T-Mobile International AG appealed a 1st District Court of Appeal ruling upholding a local law requiring a permit for telecom equipment installed along public streets. T-Mobile West LLC v. City and County of San Francisco, S238001 (Cal., filed Nov. 2, 2016).

The company argued the law violates the state's Public Utilities Code and claimed local governments should only be able to restrict the equipment when it provides some physical impediment to travel on streets.

"Infrastructure may not always be beautiful, but it is necessary," said Joshua S. Turner, arguing for T-Mobile.

The Wiley Rein LLP partner argued the law discriminates against his client because "they are holding wireless facilities to an aesthetic test that they do not impose on anyone else."

Jeremy M. Goldman, co-chief of appellate litigation with the San Francisco city attorney's office, said the city is not having an issue with other industries because telecommunications companies are the ones attempting to install large pieces of infrastructure in view of city streets.

The complaint from the telephone companies is, 'Wait, you don't have one for telegraph lines,'" Goldman said. "But no one is installing telegraph lines anymore. It's the town focusing its attention where the activity is."

Goldman went on to argue the changes demanded by the city were fairly minor and have not impeded the ability of companies to install the equipment they need. He also told the justices cities regularly pass "aesthetic" ordinances.

The court must determine two questions. First: Is the city's law preempted by state law granting telecommunications companies a franchise to place equipment in the public right of way if they do not "incommode the public use of the road"? Second: Can such an ordinance be specifically written to affect wireless equipment and not other telecommunications infrastructure?

The 1st District court sided with the city, saying San Francisco wasn't stopping telecommunications companies from building but just regulating tower construction and maintenance. That ruling invited the state Legislature to clarify the law if it disagreed, but it has not done so.

In Tuesday's argument, the justices focused on what it meant to "incommode" the right of way and what constituted an impediment from the public's point of view. Groban got into the act about 15 minutes in, dropping in some Latin.

"Assume arguendo that your definition of 'incommode' is correct, 'obstruct travel,'" Groban said. "Why is this the only area ... in which the city is allowed to regulate?"

"Because the statute is an expansion grant to telephone companies to construct their networks," Turner replied.

Groban later challenged Goldman, asking, "Does this statute in any way limit the city's ability to regulate, and can you describe the limitations it imposes?"

Goldman repeated his point that San Francisco was not preventing telecommunication companies from building needed infrastructure. "No, as long as the city's regulation is not inconsistent with the grant of that franchise, particularly so if the regulation is in an area the city commonly regulates in," he said.