Robert Bruss: Can city prohibit 'unsightly' wireless antennas?

Sprint PCS offers wireless cellular phones to customers. To provide service, the company must install wireless facilities in its coverage areas.

Representatives of Sprint submitted five applications to local building officials. Two were approved by the city. One was withdrawn, but two others were denied.

Under a city ordinance, the city council can deny permits for wireless antennas that are “unsightly.” That was the basis for Sprint’s two permit denials.

Sprint took the dispute to court, arguing there are state laws on this issue that preempt local city ordinances denying permits based on aesthetic considerations. Sprint also argued that the U.S. Telecommunications Act of 1996 allows a city to reject wireless facilities applications only if supported by substantial evidence other than being “unsightly.”

If you were the judge, would you allow Sprint to build its two wireless facilities?

The judge said “yes.”

“Because the city overstepped its regulatory authority under state law, its wireless ordinance is invalid, and no evidence supports the city’s permit denial,” the judge explained.

Both state law, and the federal Telecommunications Act of 1996 allow a city to reject a wireless facility application based on substantial evidence, he continued. However, rejection of Sprint’s applications based on aesthetics and “unsightly” antennas are not valid, the judge ruled. Sprint may construct its wireless facilities, he concluded.

Based on the 2006 U.S. Court of Appeals decision in Sprint PCS Assets v. City of La Canada-Flintridge, 435 Fed.3d 993.