Huntington Beach v NextG: Who Controls the Poles?

Lauren Saine, March 11, 2015

On February 6, 2015, Huntington Beach and Crown Castle, formerly NextG Networks, filed a settlement agreement with the California Public Utilities Commission (CPUC) on a dispute over a DAS project going back to 2007. But the agreement leaves open the possibility of further litigation!

With the explosion of wireless connectivity, wireless facilities siting is an urgent issue at the federal, state, and local levels, where there is a confluence of often conflicting interests. In California, telephone companies, as public utilities, have a right to build facilities in public rights-of-way--but only after obtaining certification from the state commission.

The state commission has constitutional authority to establish rules for the location and design of cellular facilities. It delegates this authority to local governments, but if there is a conflict with statewide interests, it reserves the right to preempt local jurisdiction. Indeed, the commission issued a decision preempting Huntington Beach’s undergrounding ordinance because “utility regulation is a statewide concern, and the Commission has the authority to preempt local ordinances that are inconsistent with its regulation.”**

At the same time, local governments have constitutional authority to grant franchises to public utilities, including establishing rules governing the time, place and manner of access to public rights-of-way. Under the public utilities code, local governments may not surrender to the CPUC their control over the location of poles, wires, or conduit in rights-of-way.

Case Study: Huntington Beach Undergrounding Ordinance

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*CPUC Decsision 10-10-007 Denying Complaint, Adopting Negative Declaration [CEQA}, and Approving Application
Huntington Beach's challenges are all legally flawed. In granting the expanded authority [under its CPCN] we noted that NextG's intended projects would take place in existing rights-of-way and in utility easements, and that associated construction would include "a limited number of new poles, ... small-scale trenching and underground conduit installation of up to five miles, and ... micro-trenching and installation of laterals of up to 25 feet." Huntington Beach then filed a formal complaint asserting that NextG's Huntington Beach construction, including three new utility poles and an additional 19 miles of fiber optic cable, would necessitate hundreds of street closings and temporary lane closures. Also, the project would require the routing of aerial cables through mature street trees, so that either the trees would have to be removed or wires run into the street.

**CPUC Decision 11-01-027 modifying D.10-10-007 Application of NextG Networks of California, Inc. (U6745C) for Authority to Engage in Ground-Disturbing Outside Plant Construction And Related Matter
Huntington Beach’s undergrounding ordinance is preempted to the extent it is inconsistent with the Commission's authorization. The literal wording of the ordinance does not permit NextG's installation. At the same time, because utilities may need to construct above-ground poles to house antennas, the statewide interest in public utility service preempts this ordinance in the event of a conflict, as is the case here. Although there is indeed a conflict with the ordinance, this does not impact the viability of the project because utility regulation is a statewide concern, and the Commission has the authority to preempt local ordinances that are inconsistent with its regulation. (Cal. Const:, art. XII, § 8.)

Updated March 26, 1015: The CPUC approved the settlement agreement on March 26.