Departments of Public Works & Governing Bodies in California Told to Get Out of the Right-of-Way Permitting Business When it Comes to DAS

In a stunning victory over the City and County of San Francisco, a Distributed Antenna System (DAS) provider, won a finding by the U.S. District Court in the Northern District of California that:

·       Allows the DAS provider to deploy in the public right-of-way with a ministerial permit rather than a permit that is discretionary, and which must be approved by the governing body.

·       Repeats, from Qwest Communications v. Berkeley: that the local government may have “control over the right-of-way itself, not control over companies with facilities in the right-of-way.”

·       Interprets Section 253(a) of the Telecommunications Act (which pre-empts a local government from prohibiting the provision of telecommunications) as precluding the requirement of a discretionary permit.[1]

·       Interprets Section 253(b) of the Telecommunications Act of 1996 which contains the phrase “protect the public safety and welfare” as not saving a local government from pre-emption under Section 253(a), at least in this case.

The latter point may be of interest to all cities, counties, towns, villages and boroughs in the U.S.  According to the Judge: 

The City has offered no coherent explanation as to which of its permitting requirements furthers the public safety and welfare.  In particular, the court cannot conceive of how the City’s retention of complete discretion to deny a permit altogether could fall under section 253(b).

San Francisco failed to demonstrate public safety and welfare and, even if the City and County tried, it could not show how outright denial would be justified.

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