SB 1627:  Does the New Law Really Help the Wireless Telecommunications Industry?

A decade ago, cell phones were more items of novelty than necessity.  Now they are the sine qua non of business and social interaction in the modern world.  In just two decades, the number of wireless subscribers has soared from approximately 200,000 to over 200 million. Twelve percent of American households are wireless only, and that number continues to climb . As cell phones replace traditional landlines, they offer an ever-expanding array of technological applications - beyond regular telephonic communication - from e-mail and text messaging to broadband internet access and streaming video.

The growing dependence on wireless technology brings an increased demand for reliable, seamless coverage. But expansion of wireless networks in turn drives the need to construct the necessary (but not always welcome) features of wireless infrastructure: cell towers and antennas. Many cities and counties, faced with growing queues of permit applications for such facilities and the specter of cell-tower blight, have asserted their land use planning prerogatives to impose discretionary controls over the appearance, size, number and location of such structures.

It has become all but impossible for some carriers to clear such discretionary hurdles and keep up with market demand. The problem is heightened by the furious pace of new wireless technological developments, which carriers must offer to their customers to remain competitive. Such new technologies often require carriers to expand their networks, and efforts to do so are frequently frustrated by the plodding course of governmental approval processes.

New State Streamlining Permissions

Last year, the California Legislature enacted SB 1627 - the first State statute to expressly govern the land use approval process for wireless telecommunications facilities. The purpose of the Bill, which has made its debut as Government Code sections 65850.6 and 65964, was to streamline the local permitting process by eliminating discretionary review over "collocated" wireless facilities. "Collocation," an industry term of art, means the placement of wireless transmission equipment of more than one provider on a single structure.

The law therefore removes discretionary authority for wireless telecommunications land use permits - but only over those wireless telecommunications facilities mounted to existing cell towers and structures (sometimes referred to in this article as the "base stations" for collocation facilities). By foreclosing the ability of cities and counties to exercise discretionary permit review for collocated facilities, the law seeks to foster development of wireless networks. At the same time, it addresses the need of local governments to control the spread of wireless antennas by encouraging carriers to concentrate their facilities on existing structures. Whether it has accomplished those goals remains to be seen.

Like so many legislative enactments, SB 1627 is the product of compromise born of competing interests. On one side, industry advocates sought to use SB 1627 to eliminate local barriers to the construction of their networks; on the other, local governmental interest groups, such as the League of California Cities, tried to craft amendments to preserve local control over the permitting process and protect their jurisdictions from the aesthetic impacts caused by the proliferation of cell towers and antennas. Both sides had a say over the final wording of the statute. Now, in many instances, both sides are scratching their heads over how the law should be implemented.
SB 1627 is not a model of clarity, and the language of the statute can give rise to disparate interpretations as to who benefits most from its provisions. Indeed, to tout or deride SB 1627 as a "pro-industry" bill may be far too simplistic.  That is because SB 1627 does not just remove discretionary control over collocation facilities; it also contains provisions that appear to expand discretion by conferring a wide grant of authority over the issuance of land use permits for the initial "base station" structures intended for those collocation facilities. For that reason, SB 1627, by some accounts, may affirm expansive local authority over wireless facilities in a manner not previously seen in any California statutory scheme.

In fact, the statute acknowledges the ability of local governments to employ their full slate of discretionary land use powers over permit applications for collocation base stations. The Bill allows local governments to regulate the height, location, bulk and size of those structures. It requires at least one public hearing and subjects the entire process to California Environmental Quality Act review through either an environmental impact report or a negative declaration - leaving no mention of potentially applicable CEQA exemptions. The law goes so far as to expressly permit local governments to control the aesthetics and design of such structures.

To put it simply, SB 1627 appears to take away from local governments with one hand and give back with the other. 

Conflict With Federal Laws

One may ask why the exercise of such authority by local governments should give rise to controversy. After all, the ability of cities and counties to exercise control over their own land use decisions lies within the sacred ambit of the public welfare, and municipalities are vested by the State Constitution with virtually plenary authority over such matters within their jurisdictions. On that note, the modes of discretion identified by SB 1627 are no different from the standards employed for the issuance of any discretionary land use permit. By those accounts, therefore, SB 1627's affirmation of local power to govern such areas should not raise eyebrows.

But this is not an ordinary land use statute. SB 1627 addresses the permitting of wireless telecommunications networks. Unlike the usual subjects of local land use regulation, wireless telecommunications networks are not a matter of purely local concern. Indeed, wireless networks transcend municipal boundaries and touch on matters of statewide and federal interests in promoting commerce.

For that reason, Congress enacted the Telecommunications Act of 1996 to embody its free market vision for wireless telecommunications technologies. The Telecom Act seeks to "promote competition and reduce regulation" and to "encourage the rapid deployment of new telecommunications technologies." In furtherance of those goals, the Act has a preemptive effect over local barriers to market entry, including local land use decisions and ordinances that may obstruct the Telecom Act's goals. SB 1627 therefore arrives on the scene of a unique legal landscape where federal, state and local regulatory regimes converge.
In fact, as the Legislature was working out the final details of SB 1627, the Ninth Circuit Court of Appeals was busy writing its landmark decision for the wireless telecommunications industry, Sprint Telephony v. County of San Diego, 490 F.3d 700 (9th Cir. 2007). In that case, the Ninth Circuit used the Telecom Act to deal a major blow to local land use powers in the wireless telecommunications arena.
The court invoked section 253 of the Act to strike down a San Diego County ordinance that contained many of the categories of discretion enumerated in SB 1627, including the purported power to regulate the siting of wireless telecommunications facilities on aesthetic grounds. The court observed that the Telecom Act had a preemptive effect over state and local law and that such preemption was "'virtually absolute' in restricting municipalities to a 'very limited and proscribed role in the regulation of telecommunications.'" The Ninth Circuit case foreshadows a potential conflict between SB 1627 - which may be read to affirm local land powers - and developing federal jurisprudence which interprets the Telecom Act to closely circumscribe those powers.

Local Control in the Public Rights-of-Way

SB 1627 also may intrude on older state laws intended to address local barriers to telecommunications networks. Shortly after California was admitted to the Union in 1850, the first California Legislature enacted former Civil Code section 536, which granted an express franchise right to telegraph companies to install their poles and lines in the city streets, without the need to obtain local grants of access to those streets. The Legislature amended that statute in 1905 for the Telephone Age, and the law is still on the books as Public Utilities Code sections 7901 and 7901.1.

Recently, the Ninth Circuit applied both state statutes to wireless telecommunications companies. In Sprint PCS Assets, L.L.C. v. City of La Cañada Flintridge, 435 F.3d 993 (9th Cir. 2006), the court held that section 7901 prevents cities from regulating wireless facilities in the public rights-of-way on aesthetic grounds. The court used a provision of the federal Telecom Act to invoke the old state law. While the matter has yet to be settled by the State courts, the upshot of the federal decision was clear: local jurisdictions have limited discretion to regulate wireless telecommunication facilities in the public rights-of-way. Can SB 1627's indiscriminate grant of discretion be reconciled with law that significantly limits discretionary controls over wireless facilities in the public rights-of-way?

Clash or Cooperation

The language of SB 1627 gives rise to big questions about the practical effect of this new law on wireless providers and local governments. If the law is not amended in a manner that expressly limits its discretionary grants in a manner consistent with the Telecom Act and section 7901, those questions may be left to the courts to resolve.

But litigation over the meaning of SB 1627 need not be a fait accompli.  Local governments can greatly benefit from collocation, as it promotes the concentration of wireless facilities at specified sites and therefore facilitates land use planning. Wireless telecommunications carriers, in turn, can benefit from the permit streamlining goals of the Bill. In short, realizing the legislative goals of SB 1627 is in the best interest of both sides of this issue.  It is important for both local governments and wireless carriers to collaborate on drafting mutually acceptable guidelines and ordinances that effectively convey the legislative spirit behind this new law.

Michael Shonafelt is a partner in the Los Angeles office of Allen Matkins, where he provides counsel to both private and public sector clients in land use entitlement and environmental compliance matters.  He has assisted wireless telecommunications clients in the siting and permitting of wireless telecommunications facilities in numerous jurisdictions and advises clients on all aspects of the federal Telecommunications Act of 1996, the California Environmental Quality Act and the California Planning and Zoning Law.  He can be contacted at mshonafelt@allenmatkins.com.