The San Francisco Board of Supervisors voted to settle T-Mobile’s lawsuit over the board’s 11-0 vote in May 2010 to deny a conditional use permit. T-Mobile filed the lawsuit after residents steadfastly opposed its plans and after that successful appeal to the board. Several residents spoke at last week’s Rules Committee, urging a vote against settlement, reasoning that it would send a message to wireless carriers that all they
have to do is sue the city and then settle the lawsuit to get what they want. One resident said, “By catering to these well-heeled corporate litigators, this board will be sending the wrong message. Since 2001, there have been 17 conditional use appeals involving cell sites like this one. Just last year there were two; both were unanimous 11-0 votes in favor of the residents. 14 have been decided in favor of residents, 3 resulted in federal lawsuits, the city prevailed in all three which entailed the same questions before you today.”

Court decisions prevent carriers from seeking attorneys fees or damages for contested site denials, even if they prevail against municipalities. In this case, neighborhood residents even offered to pay for the city’s retention of an expert for trial of the ‘significant gap’ issue. Despite the pleas, Supervisors voted 7-4 to settle, with John Avalos, David Campos, Eric Mar and Ross Mirkarimi voting against: Avalos and Campos spoke about the settlement as being bad precedent, while Supervisors who voted in favor of settlement gave no reasons for doing so.

More on public comments in this matter: citizens pointed to charts showing the large number of cell sites maintained and proposed by T-Mobile and AT&T and speculated that T-Mobile was attempting to muscle in as many sites as it could in advance of a hoped-for merger. Citizens were also concerned about the settlement’s effect on T-Mobile’s lawsuit filed with NextG Networks and ExteNet opposing newly-enacted legislation that regulates public right-of-way installations in San Francisco.

Those rules, and the impact of that lawsuit’s outcome, were referenced more than once by the Los Angeles City Attorney in a Planning and Land Use Management/Public Works Committee meeting yesterday on proposed new rules for LA. Members present included Paul Krekorian, 2nd Council District, who has had ongoing discussions with Sherman Oaks and Sunland/Tujunga residents upset about T-Mobile installations in their neighborhoods.

Krekorian warned there could be negative impacts if utility pole exemptions in existing city code were removed, because carriers would have less incentive to “co-locate.” Richard Alarcon, 7th Council District, raised other provocative points. He asked how decisions about cell sites could be based on aesthetics when utility poles on which they are often placed are already ugly. The City Attorney responded that such arguments are attempts by municipalities to “carve out some means of discretion over siting.” During public comment, Pacific Palisades Residents’ Association President Barbara Kohn said that there was no fine line between ugly and uglier – the bulk of additional equipment and associated electrical boxes made utility poles burdened with wireless equipment far more prominent and far uglier. She and every other neighborhood representative speaking emphasized that it was critical something be done to regulate installations.

Alarcon also opined that the 1996 Federal Telecommunications Act, which greatly restricts municipal authority over wireless siting, was enacted in response to local attempts to make money off of telecom installations. He said it is a question of “who gets the campaign contributions.”

Tally of speakers at the LA hearing: Residents/resident association representatives – 8; Wireless industry/business interests – 5. Among the residents were representatives of the Sherman Oaks group Get the CELL Out, who have worked extensively with Krekorian and voiced strong support for the City Attorney’s recommendations to 1) remove the utility pole/light pole exemption; 2) expand notification requirements; and 3) enhance existing aesthetic criteria. They also asked for permit duration limits, and a requirement that renewed permits and pending applications fall under the new ordinance. Pacific Palisades resident Patrick Hart said that the city should consider evaluating permit applications by additional criteria including functionality, public safety, and environmental standards.

Cindy Cleghorn, Secretary of the Sunland-Tujunga Neighborhood Council, said residents need to see “the full project”, since what is sent out in notifications for proposed new sites is often not complete. She complained about emissions and noise from existing sites which were not adequately disclosed.

Anita Gabrielian, current Glendale Community College Trustee and Executive Director of External Affairs for AT&T in Los Angeles, recited stats heard before and urged the committee to consider how to improve policies for everyone including the wireless industry. Just as Richard Roche, AT&T External Affairs VP, stated recently in Burbank, Gabrielian said that demand has grown 8000 percent over the past four years and is projected to grow 8-10 times higher by 2015. She said AT&T invested $19 billion last year, and $20 billion this year on infrastructure, to bring optimum wireless service to customers.

The three other representatives of wireless companies, together with Doug Arseneault of the Valley Industry and Commerce Association, all urged the committee to establish a working group drawing from city departments, LA DWP, wireless carriers, residents, and other stakeholders to study the issues and report back to city council.

Committee members resisted the industry delay tactic suggestion to form another body to study an issue that more than 50 residents groups want to see resolved. They directed the City Attorney to start drafting a document while identifying working group members that could provide input once the document is drafted. Staff were directed to return in 60 days with ordinance recommendations.

This is just California, and San Francisco and Los Angeles are just two very big cities in a huge state, and that was just yesterday’s news in those two cities. Similar fights have started for more than a decade, they are growing in number, and they are going on all over this state, and all over the country, in municipalities and counties large and small. The reason: municipalities are bound by federal law which enforces acceptance of FCC guidelines in these matters, but citizens do not trust current FCC guidelines for safe exposure to wireless frequencies, and they do not trust the FCC to have the best interests of local communities in mind as it handicaps local zoning authorities.

Also yesterday, a coalition of three environmental and health advocacy groups issued a public call to citizens, urging them to contact their representatives in Congress to request the Federal Communications Commission (FCC) to update its obsolete cell tower safety regulations. Excerpt:

The FCC’s cell tower safety regulations need to be revised immediately because:

1. WHO’s International Agency for Research on Cancer has classified RF Radiation as a “Possible Carcinogen”

2. Current Regulations Have Long Overlooked the Harm from RF Radiation’s “Non-Thermal” Biological Effects

3. Biological and Health Effects from RF Radiation Are Widely Occurring In Both Adults and Children

4. Evidence for RF Damage to the Ecosystem is Mounting

To protect the public from risks from radiofrequency radiation (RF) the FCC must establish new safety guidelines for cell towers, Wi-Fi and cell phones that reflect the current science showing harm to human health, wildlife and nature.

In June 2009, Sharon Curry, a psychologist in Merrick, [Long Island] woke up to find a cell antenna abutting her backyard, level to her 8-year-old son’s bedroom window.

Puzzled by its presence, particularly because she lives next to an elementary school, she did research to see if there was cause for concern. What she learned about possible health impacts, she said, led her to seek help from civic associations and to form a group, Moms of Merrick Speak Out, to keep new cell towers out. She said she was seeking the “responsible” placement of cell antennas, away from homes and schools.

The article goes on to say “The Federal Communications Act of 1996 says health concerns are not a valid reason for a municipality to deny zoning for a cell tower or antenna,” without commenting on the FCC’s credibility to dictate acceptable exposure limits.

Back in Los Angeles, the Silverlake Neighborhood Council endorsed the Burbank Residents’ Report in a memo to Los Angeles city council members.

The Burbank report, prepared by residents to inform city officials and staff working on a new wireless ordinance, presents proactive wireless siting rules in other communities, including Glendale. The Silverlake NC is one of 45 residential groups, representing over one million stakeholders, that have petitioned the city of Los Angeles for more oversight of wireless installations.

Also back in Los Angeles, Dr. Magda Havas will be speaking this Thursday in Woodland Hills on her research linking proximity to cell towers with health effects.

The resolution calls on the EPA to perform appropriate research and the FCC to analyze and update existing standards and adequately measure the health impacts of wireless facilities. It also calls on the California Congressional Delegation to introduce federal legislation to repeal limitations on state and local authority imposed by the Telecommunciations Act of 1996.

San Francisco now joins Glendale, and other communities in California and in other states that have adopted similar resolutions:

In California –
Glendale
Agoura Hills
Albany
Los Angeles County
Santa Barbara
Sebastopol

Communities in other states -
Portland, Oregon
Santa Fe, New Mexico
Tucson, Arizona

The Coalition for Local Oversight of Utility Technologies (www.cloutnow.org) has more information about these efforts, and an online petition individuals and community groups can sign.

GOACT praised the protections city staff drafted for private property installations, while urging more restrictions for city-owned public right-of-way sites, which could be right in front of homes.

The report can be viewed here, and is reprinted below:

Moratorium on cell sites in Glendale residential areas continues.

15 or 16 permits pending on Public Right of Way (PROW), most in Chevy Chase, San Rafael areas.

3 permits pending on private property – 250 Mesa Lila Road (2) and 1280 Boynton Street (1).

Draft Wireless Ordinance released October 2009. Three community meetings held, comments received from industry and residents. City published all submitted comments here: http://www.ci.glendale.ca.us/pdf/wirelessAntennas_stakeholdersComments.pdf

Planning Commission hearing held February 2010. Staff report on proposed changes to Title 30; comments from residents and industry. Commissioners decide to include slopes, contours, trees, topography in siting considerations. GOACT praises Title 30 protections. PROW rules (Title 12) a primary concern.

NEXT STEPS IN GLENDALE:

Public Works Counsel still accepting comments. Planning Commission comments and subsequent written comments received from public or industry will be included in staff report to City Council.

City Council hearing – end of March to mid/late April. Review of draft wireless ordinance with changes to Title 30 (zoning) and Title 12 (PROW) will be on agenda.

GOACT’S RECOMMENDATIONS:
Urge City Council to enact
-setbacks of at least 15 feet for public right-of-way installations
-public hearings for public right-of-way installations.
Send comments to City Attorney Christina Sansone, and speak at the City Council meeting.
The draft wireless ordinance does not currently have these changes to Title 12. City staff and consultants told Planning commissioners it would be problematic to mandate PROW setbacks and hearings, but without them, residents are no better off than they were before.

Urge Glendale to adopt SDG&E and LA County Counsel’s recommendations for cell sites in fire hazard areas: undergrounding of equipment, ownership markers on poles, clearance requirements for overhead wires next to other wires, $500 million insurance requirement.
http://docs.cpuc.ca.gov/efile/MISC/111639.pdf
http://docs.cpuc.ca.gov/efile/CM/111653.pdf

Petition Congressman Schiff for repeal of Section 704, Telecommunications Act of 1996. GOACT and the Coalition for Local Oversight of Utility Technologies (www.cloutnow.org) call for repeal of federal law which prohibits regulation of the “placement, construction, and modification of telecommunications towers and other personal wireless services facilities on the basis of the health and environmental effects of such facilities”

Debbie Raphael, San Francisco Toxics Reduction Program Manager, presented background information and the relevance of San Francisco’s Precautionary Principle to the issue at hand. Using CDC and other data, Raphael reported that more than 250 million Americans use cell phones and average 848 minutes a month, the highest usage in the world (Canada is next, with 446 minutes per month!). More than 20 percent of U.S. households use cell phones only.

“There is a challenge before us of science that isn’t consistent. If you look at federal websites … you’ll see such statements as ‘there is no evidence’ and ‘there is no link to harm’ and yet, in the studies that we’ve been looking at, it doesn’t seem like there’s a unanimous version of that at all,” Raphael continued.

The problem with assessing affects of long-term use is that 85 percent of people have only been using cell phones heavily for 5 years, and only 2 percent of the population has been using them heavily for more than 10 years. Raphael said that a number of well-respected journals have published studies that have found evidence of harm aggregating data from long-term cell phone users, “The science is not unanimous.”

It is “disturbing,” she added, that the U.S. is not participating in any of the three major international studies right now looking at long-term effects of cell phone use, especially since minutes of cell phone use are much greater in the U.S. than other countries. “How do we get the U.S. engaged? Clearly, this is something that can’t happen in San Francisco, it has to happen nationally. How do we get the conversation started in this country?”

Raphael reported that the country of France is most concerned about the long-term impact of cell phone radiation exposure to children. In Lyon, a public outreach campaign discourages families from allowing children under 12 to use cell phones.

She concluded that San Francisco’s Precautionary Principle requires the city to act on this issue. Following her presentation, 15 members of the public spoke in favor of action, some mentioning victims of brain cancer in their own families, and several calling for the city to promote the use of hand-sets that place distance between cell phones and users’ heads.

A Commission staff member read a statement forwarded by Dr. Joel Moskowitz of UC Berkeley’s School of Public Health. Dr. Moskowitz led a study last year on the possible connection between cell phones and brain tumors (described on this U.S. Department of Health and Human Services news page) and believes there is a clear health risk from long-term use.

The approved resolution (modifications made during the meeting aren’t reflected below) will be considered next by the San Francisco Board of Supervisors.

WHEREAS, The French Senate is considering legislation that would restrict the promotion and sale of cell phones for use by children and would require companies to offer headsets with each phone sold; and

WHEREAS, The maximum level of radiation emitted from a cell phone and absorbed by the human brain and body is called the Specific Absorption Rate (SAR) and these values range in cell phones from 0.2 to 1.6 W/kg, the maximum legal value in the US; and

WHEREAS, The United States Food and Drug Administration (FDA) does not review the safety of cell phones before they come to market but does have the authority to take action against the unsafe exposure to radiation from these products; and

WHEREAS, the United States Federal Communications Commission (FCC) has accepted the safety standards for cell phone radiation set by the electronics professional trade association, the Institute of Electrical and Electronic Engineers (IEEE); and

WHEREAS, cell phone radiation safety levels accepted by the FCC do not take into account potential increased vulnerabilities of children nor the cumulative effects of long-term use and do not provide sufficient protection in determining a maximum allowable SAR value of 1.6 W/Kg for the human head and brain; and

WHEREAS, San Francisco has adopted a Precautionary Principle Ordinance that compels government agencies to heed early warning signs from the scientific literature and to take protective action to prevent harm; and

WHEREAS, Cell phone manufacturers are required to report the SAR values of their phones to the FCC but are not obligated to make this information available to the public; and

WHEREAS, Consumers in San Francisco, and beyond, have the right to know the level of radiation being emitted by cell phones as they make their purchasing decisions; and

WHEREAS, Consumers in San Francisco should be informed of any steps that can be taken to minimize harm, such as the importance of using head-sets and texting as an alternative to speaking directly into the phone, now, therefore, be it

RESOLVED that the San Francisco Commission on the Environment recommends that the:

Federal Government conduct a review of cell phone safety standards and revise these based on concerns for children and long-term effects and consider a ban on cell phone advertising aimed at children.

State of California and the Federal Government adopt legislation that requires warning labels be placed on all cell phone packaging regarding exposure to radiation, especially for children.

City/County adopt legislation requiring that retailers of cell phones provide point- of-sale information on SAR values and information on safer use. The SAR value should be as visible to the consumer as the price.

City/County work closely with the School District to educate students, parents, caregivers and teachers about cell phone radiation and the importance of appropriate use of cell phones including: limiting their use to emergencies, use of a headset, and keeping the phone away from the child’s body to the maximum extent possible.

City/County work closely with the School District to prohibit the distribution of cell phone promotional materials and the use of cell phones as part of the curriculum especially for elementary schools.

City/County explore ways to encourage cell phone companies to develop technologies, products, and educational programs that facilitate the safest possible use of cell phones.

Director of the Department of the Environment and the Department of Technology, under the Precautionary Purchasing Ordinance, require that cell phones purchased by City Departments minimize SAR values and come with both a headset and educational materials on minimizing exposure to radiation.

Department of the Environment staff initiate an educational campaign that includes a web page to help consumers identify low SAR value phones and protective measures to reduce exposure to cell phone radiation

San Francisco was the first city in the nation to adopt a “Precautionary Principle”, now the first section of its Environmental Code, specifying an approach to decisionmaking as follows:

Where threats of serious or irreversible damage to people or nature exist, lack of full scientific certainty about cause and effect shall not be viewed as sufficient reason for the City to postpone cost effective measures to prevent the degradation of the environment or protect the health of its citizens. Any gaps in scientific data uncovered by the examination of alternatives will provide a guidepost for future research, but will not prevent the City from taking protective action. As new scientific data become available, the City will review its decisions and make adjustments when warranted.

Where there are reasonable grounds for concern, the precautionary approach to decision-making is meant to help reduce harm by triggering a process to select the least potential threat. The key elements of the Precautionary Principle approach to decision-making include:

1. Anticipatory Action: There is a duty to take anticipatory action to prevent harm. Government, business, and community groups, as well as the general public, share this responsibility.

2. Right to Know: The community has a right to know complete and accurate information on potential human health and environmental impacts associated with the selection of products, services, operations or plans. The burden to supply this information lies with the proponent, not with the general public.

3. Alternatives Assessment: An obligation exists to examine a full range of alternatives and select the alternative with the least potential impact on human health and the environment including the alternative of doing nothing.

4. Full Cost Accounting: When evaluating potential alternatives, there is a duty to consider all the reasonably foreseeable costs, including raw materials, manufacturing, transportation, use, cleanup, eventual disposal, and health costs even if such costs are not reflected in the initial price. Short- and long-term benefits and time thresholds should be considered when making decisions.

5. Participatory Decision Process: Decisions applying the Precautionary Principle must be transparent, participatory, and informed by the best available science and other relevant information.

Several researchers have called on the U.S. to adopt the “precautionary principle” (take action on the side of caution) in recommending that children not use cell phones and that cell towers be located away from residential areas and schools. Sunroom Desk advocated it as a starting point for evaluating wireless facility siting.

“…although the FCC has stated that there are no health concerns at the emission levels allowed, certain precautions would still be advised,” – from the Glassell Park Improvement Association “Position on Telecommunication Towers” written awhile ago but revisited last night at a community meeting. Cell tower siting will be on Glassell Park Neighborhood Council board agenda for discussion next week.

Culver City residents published this notice of a January 19 city council meeting to organize protest against a proposed cell tower near homes and a school:

“Health risks associated with these sites are frightening. Unfortunately the Federal government in the Telecommunications act of 1996 eliminated the ability of local governments to restrict the placement of these types of antennas on the basis of health concerns.

Federal law does not allow the city to restrict placement of these transmitters to protect our health. However, the city government does care about the community, and we are certainly not restricted in expressing any of our concerns. We can do so on January 19 2010, at City Hall, 7PM.

San Francisco is considering a new ordinance that would assert municipalities’ rights to control wireless facility installations in the public right-of-way, using the 2009 Palos Verdes Estates Ninth Circuit Court of Appeals decision as its justification. The city is also revising its wireless guidelines to establish a tiered system (similar to the draft wireless ordinance now being reviewed in Glendale) and to reclassify all residential zones as non-preferred for wireless installations.

Portland, Oregon’s Respect PDX, opposing installation of a Clearwire cell tower, was featured for an hour yesterday on a talk radio show. An audio file of the interview with two Portland residents is here and worth listening to: it reinforces the commonality of residents’ concerns, highlights citizens’ justifiable anger at having no recourse as a potential health risk is forced upon them, and shows the uses to which telecom companies are putting public right-of-way laws in their expansion plans.

T-Mobile Cell Tower Notification and Condemnation (Waiver of Board Rule 72)

Whereas, The health and safety of our students and employees are fundamental concerns of the Los Angeles Unified School District;

Whereas, On June 27, 2000 and May 26, 2009, the Governing Board of the Los Angeles Unified School District adopted resolutions opposing the siting of cellular facilities on or in close proximity to schools to ensure individuals, especially children, are protected from the potential health effects associated with exposures to extremely low frequency electromagnetic and radiofrequency radiation;

Whereas, The District has been successful in restricting the placement of wireless communication installations on its school facilities, but it has had limited success in preventing wireless service facilities from siting near its schools due to apparent restrictions placed upon zoning authorities to consider the health and environmental effects of radio-frequency radiation;

Whereas, The desire of the wireless companies to market new wireless services has since led to a proliferation of cellular facilities targeting residential areas and areas near schools;

Whereas, Wireless infrastructure is being deployed at an unprecedented speed and cellular facilities have been approved without proper justification and proof that the placement is to serve existing demand or provide public safety benefits;

Whereas, Serious concerns exist regarding wireless permits approved near schools without proper notification to school officials and nearby property owners or proper review and oversight of the wireless applications;

Whereas, Cities, counties, and local municipalities have relied upon Section 704 of the Federal Telecommunications Act of 1996 to preempt local communities and school districts from opposing the placement, construction, and modification of personal wireless service facilities on the basis of environmental effects of radio-frequency emissions to the extent that the proposed facilities comply with the Federal Communications Commission regulations concerning such emissions;

Whereas, Cities, counties, and local municipalities have not had to demonstrate that these telecommunication facilities comply with the Federal Communications Commission regulations concerning radio-frequency emissions as they relate to multiple-transmitter sites and complex
environments whereby all significant contributions to environmental exposures are cumulatively considered;

Whereas, Based upon new and emerging scientific evidence there continues to be considerable debate as to the adequacy of existing public exposure standards including those promulgated by the Federal Communications Commission;

Whereas, The full Parliament of the European Union has raised concerns about the exposure of children and young people to electromagnetic fields and continuing uncertainties about possible health risks; and, therefore, adopted on April 2, 2009 a resolution encouraging 1) the establishment of etback criteria for wireless antennas, mobile phone masts and other electromagnetic emitting devices to be set within a specific distance from schools and health institutions, 2) stricter regulations and protections for residents and consumers and 3) more reliable information be made available about the effects of exposure to electromagnetic fields to citizens in an effort to prevent a “proliferation of poorly positioned masts and transmitters”;

Whereas, The Federal Communications Commission is obliged to conduct periodic reviews of current research and analysis of the health implications associated with radio-frequency exposures in cooperation with industry, agency, and organizations responsible for community health and safety to ensure exposure guidelines are appropriate and scientifically valid;

Whereas, T-Mobile has refused to consider and implement the requested changes by placing a cell tower on the corner of Westmont and Taper Avenues, located approximately 40 feet from Taper Elementary School,

Whereas, T-Mobile has refused to considered alternate locations for placement of the cell tower,

Whereas, T-Mobile or any responsible agency has failed to properly notify the District of the placement of this cell tower located next to a school,

Whereas, T-Mobile or any responsible agency has failed to properly notify the community or parents in the area surrounding the proposed cell tower; now, therefore be it

Resolved, That the Governing Board of the Los Angeles Unified School District directs the Superintendent to request local jurisdictions to provide timely notification when new cellular permit applications are filed and provide comment on the health risks from the proposed facility as it relates to compliance with existing Federal Communications Commission regulations associated with cumulative exposures;

Resolved further, That the Board requests that the County of Los Angeles Board of Supervisors, the Los Angeles City Council and all local jurisdictions that the District serves join in passing a resolution in demanding the revision of Section 704 of the Federal Telecommunications Act of 1996’s preemption of consideration of the health and environmental effects of radio-frequency radiation at levels below current Federal Communication Commission standards in decisions involving the placement, construction and modification of wireless facilities, and in favor of amending the California Public Utilities Code to grant local governments authority to regulate wireless facilities in public rights of way pursuant to local planning and zoning ordinances;

Resolved further, That the Board requests that the Department of Water and Power or any other responsible agency call for the removal of any cell phone towers within 200 feet of a school campus;

Resolved further, That the Board requests that T-Mobile immediately remove the cell phone tower located adjacent to Taper Avenue Elementary School or any responsible agency use all available legal means to remove the cell phone tower; and be it finally

Resolved, That the Board expresses its most serious condemnation of T-Mobile’s construction of the cell phone tower adjacent to Taper Avenue Elementary School and urges T-Mobile to remove the cell phone tower to avoid serious damage to its brand in the District and the community at large.

Those federal and state laws clearly have an excellent grasp over local efforts to control wireless facilities siting.

Glendale public works counsel Christina Sansone, city consultant Jonathan Kramer, and outside counsel Jeff Melching explained how the Telecom Act of 1996, the California Public Utilities Code, and court of appeals rulings have severely limited or left ambiguous how municipalities can regulate placements.

The Glendale ordinance was drafted to give the city more leeway to judge permit applications, but offers limited protection against public right-of-way installations in residential areas. Glendale Organized Against Cell Towers committee members urged the city last night to improve those parts of the ordinance by incorporating setback provisions similar to those in San Diego County (upheld by the Ninth Circuit Court of Appeals).

Two more community meetings will be held so residents and the community can learn about and comment on the draft ordinance. The Glendale News Press has a report on last night’s meeting here.

Sprint originally applied to install ten towers; the city granted eight of the applications but denied two: one because it would be on a narrow residential street, the other because it would be located on one of the four main entrances to the city.

The court ruled that the city’s aesthetic objections were consistent with its zoning practices, and that Sprint had not proved denial would cause a “significant gap in coverage” or specified why it could not upgrade existing infrastructure which the company claimed needed to be replaced.

According to the published opinion:

Sprint acknowledged that it already served four thousand customers in the City with its existing network but stated that the proposed WCFs were nonetheless needed to replace its existing infrastructure.

It describes a city staff “drive test” through the city confirming adequate coverage, and Sprint’s subsequent lawsuit on the grounds that the city council had violated provisions of the Federal Telecommunications Act of 1996. A lower court ruled in Sprint’s favor, but based its decision on an interpretation of California, not federal, law. The Ninth Circuit opinion disagrees with the application of the relevant California code, and notes that:

This determination was premised on a legal conclusion that California law prohibits the City from basing its decision on aesthetic considerations.

The Ninth Circuit’s discussion of the Telecom Act’s scope and provisions is especially timely given the FCC’s recent announcement that it would help the wireless industry override local zoning restrictions. In this decision, the court says:

On the one hand, the statute is intended to “encourage the rapid deployment of new telecommunications technologies.”

…On the other hand, it seeks “to preserve the authority of State and local governments over zoning and land use matters.”

…this Court may not overturn the [City’s] decision on ‘substantial evidence’ grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence.”

…Thus, we must determine (1) whether the City’s decision was authorized by local law and, if it was, (2) whether it was supported by a reasonable amount of evidence. Both requirements are satisfied here.

…The district court erred in concluding that the City’s consideration of aesthetics was invalid under the [Public Utilities Code]. The California Constitution gives the City the authority to regulate local aesthetics, and neither PUC § 7901 nor PUC § 7901.1 divests it of that authority.