In doing so, the Court made clear that the state franchising requirements of Section 7901 and the local police powers held by the City could work in “harmony.” The California Supreme Court upheld the ordinance, first ruling it was not preempted by Section 7901. They also argued that the ordinance violated the nondiscrimination prohibitions of California Public Utilities Code Section 7901.1, which requires local governments to exercise their “time, place, and manner” regulation of road access on “all entities in an equivalent manner.” In particular, they asserted that the ordinance violated the nondiscrimination requirements by applying the aesthetic requirements only to wireless providers, and not to other telecommunications companies accessing the rights-of-way. The companies maintained that the term “incommode” referred only to the obstruction of travel, and thus did not permit local aesthetics-based regulation. ![]() The companies argued that the ordinance was preempted by the state’s telecommunications franchising statute (California Public Utilities Code Section 7901), which grants telecommunications companies the right to deploy equipment along public rights-of-way in California as long as they do not “incommode” public use. 12-11 regulated the construction, installation, and maintenance of wireless equipment in order to prevent the placement of equipment in a manner that would “diminish the City’s beauty,” and required heightened aesthetic review in certain areas. T-Mobile (along with other wireless service providers such as NextG Networks and ExteNet Systems), challenged a San Francisco ordinance conditioning access to public rights-of-way on aesthetic considerations. ![]() Amidst the ongoing power struggle between communications service providers striving for unfettered access to rights-of-way to place their facilities, and municipalities working to protect their authority over such rights-of-way, local governments retained a measure of control over the deployment of wireless equipment in their rights-of-way when the California Supreme Court held that municipalities may consider aesthetics when granting wireless installation permits.
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