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Right-Of-Way Access Victory Under Section 253 of the Communications Act

By Suzanne K. Toller and Martin L. Fineman
06.13.06
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DWT recently won an important victory in the U.S. District Court for the Northern District of California on behalf of our client, NextG Networks of California, Inc. (NextG), in an access dispute with the City and County of San Francisco (the City). NextG constructs independent transport networks that improve coverage and capacity for other carriers’ wireless networks by transporting signals from and among small antennas and a base station via fiber optic lines.

Starting in 2002, NextG sought access to public rights-of-way in the City of San Francisco to install its facilities as authorized by the California Public Utilities Commission (CPUC). The City refused to grant NextG access on equal terms with other carriers. The City maintained in part that NextG must obtain a discretionary major encroachment permit in order to install its antennas, while allowing other more traditional “full” facilities-based carriers to install facilities pursuant to a ministerial, non-discretionary permit.

In its suit against the City, NextG asserted that the City’s actions denied NextG its rights to install facilities in the public way and prohibited NextG from providing service in violation of Section 253 of the federal Communications Act (47 U.S.C. § 253) and California Public Utilities Code §§ 7901, 7901.1. Section 253 prohibits local entities from erecting barriers that prohibit or have the effect of prohibiting the ability of any entity to provide telecommunications services. Section 7901 of the California Public Utilities Code grants telephone corporations the right to install facilities along public rights-of-way without the need for discretionary local permits. NextG sought a declaration of its rights to access the public way and an order compelling the City to issue NextG any necessary and legitimate permits for such access.

The Court recently ruled in favor of NextG on NextG’s motion for partial summary judgment. The Court ruled that imposition of the City’s burdensome and discretionary major encroachment permit process on NextG violates Section 253(a). The Court rejected the City’s argument that Section 253(a) cannot preempt local ordinances of general applicability. Rather, the Court ruled that Section 253(a) can preempt general provisions when the locality applies them in a manner contrary to the protections established for telecommunications providers in Section 253(a). The Court also held that the City’s actions exceeded the limited “safe harbors” for local management of the time, place and manner of right-of-way access and for protection of the public safety and welfare.

Having concluded that Section 253 preempts the City’s actions, the Court declined to consider NextG’s claims under Section 7901 of the California Public Utilities Code.

The full text of the Court’s ruling is available here.

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