RES 2026024 - Laserfiche WebLink

Section 1. INTRODUCTION AND BACKGROUND Local authority over communications facilities in the public rights-of-way exists at an often-complex intersection between state law, federal law, changes in technologies and public policies. Laws and regulations impact not only whether municipalities may regulate, but how, when and even for what purpose. These introductory remarks provide a brief background on the legal and technological developments relevant to the City of Pleasanton's ability to regulate commercial wireless facilities within the public rights-of-way. California Law The legislature's control over the relationship between municipalities and communication providers is as longstanding as the state itself is old. In 1850, the California legislature enacted a law to give telegraph corporations a so-called statewide franchise to use the public rights-of-way in the state to provide their services, so long as the use did not "incommode" the streets for other public uses. The legislature codified this law in 1872 as Civil Code Section 536 and then recodified it in 1951 as Public Utilities Code Section 7901. The current version applies to "telephone corporations" and includes personal wireless service providers.' Section 7901 prohibits local franchises for telephone corporations but does not completely displace all other police powers held by municipalities in California.2 For example, municipalities retain traditional zoning authority to regulate placement and aesthetics to ensure that communications infrastructure does not incommode the public rights-of-way.3 In addition, Public Utilities Code Section 7901.1, a sister statute to Section 7901, bolsters local authority to regulate the time, place manner in which communications providers perform construction, maintenance and other operations within the public rights- of-way.4 Overall, California state law strikes a balance between the state-wide interest in a broadly available communications network and the local interest in well-planned development. Local governments cannot flatly refuse to approve deployments, but providers cannot build whatever they want wherever they want. These state laws must be reconciled with federal laws that affect local authority over communication facilities in the public rights-of- way. I CAL. PUB. UTILS. CODE§7901; Huntington Beach v. CPUC, 154 Cal. Rptr. 3d 241, 257 (Ct. App. 2013); GTE Mobilnet of Cal. Ltd. v. San Francisco, 440 F. Supp. 2d 1097, 1103 (N.D. Cal. 2006). 2 See T-Mobile West LLC v. City& County of San Francisco, 438 P.3d 239, 249 (Cal. 2019) 3 See id. at 244-45. 4 CAL. PUB. UTILS.CODE§ 7901.1; see also San Francisco, 438 P.3d at 250. Small Wireless Facilities Policy(City of Pleasanton) page 2/47