morning is to try to draw out and crystallize the implications of the rule of law and a fact that was announced by the district court and the argument that is presented by the city today on appeal yes that rule the one that underlies the decision of the district court becomes the law in the ninth circuit it's going to have at least two alarming consequences first there will be a message that goes out from the ninth circuit to every city and county located within the boundaries of the night circuit that those cities and counties can enact wireless ordinances telecom ord right of way ordinances that violate state law construct with state law and do so knowing that if they go into federal court they will find in federal court  shelter against the tyranny of the state legislature and i do not believe that it is the desire of this court to send that message to cities and county council to take us through the statutory sections  have seven and i know one which creates a state wide franchise for telephone corporations to install their lines so long as they do not incommode the public use of the road or highway or interrupt the navigation of the water limitation there on the franchise right is created on behalf of our in favor of the telephone corp i doubt if he grants the franchise rights it's actually done by the legislature by virtue of seven and i don't want to sel governed by the few you see the public utilities commission for but i don't hear the word preemption in there anywhere i think it's the only logical inference that can be drawn from seven i don't want in seventy one point one did not do anything new the time place and manner reference and that statute was nothing new and i'm going to point to a paragraph in one of the cases cited by the city itself that helps to make that point but yes seventy nine zero one and seventy nine zero one point one create a franchise and at the same time a limitation on the authority of local agencies with respect to the now i'm going to come back to the case language that i think helps to make even more dramatically the point about the meaning of seventy nine a one point one because there there is very very own case language that doesn't fact point which case you could i'm going to be quoting from one of the cases cited by the city city cited two cases western union telegraph company versus city by celia that's one forty nine there's a paragraph to read and like to quote it short but i think it makes exactly the point that i want to make about seven i know one point one and the city's argument it reads quote in western union telegraph company versus city  the court points out that the restriction in section five thirty six which is now seventy nine zero one means that a telegraph company and obviously also a telephone company cannot maintain its poles and wires in such a manner as to unreasonably obstruct and interfere with ordinary travel and that the city has authority to so regulate the placing location and maintaining of the wires and polls you won't find any other case law for statutory law that expands that authority under seventy nine one point one beyond the language that i just re the other consequence of making the district courts rule the rule in the ninth circuit is that it's going to obliterate the protections that went tended by the legislature to be created by s lie according to the city it has the right to preclude i telephone companies access to public rights of way unaesthetic grounds and the district court agreed if that is the you can imagine the consequences telephone facilities if somebody's fixtures and equipment are never going to make anything look prettier ever it will never happen all  beholder the rights that were meant to be created by seventy nine no one will be gone they will be gone if the city the size is a matter of dispute policy that they would prefer that all over utilities be placed on the ground do they have the power now they do not that is a decision that has to be made by the public utilities commission that is in fact an issue that is being worked out between cities and the public utilities that governs the trenching the appearance it's very very detailed very specific and it relates to exactly how you are to install utility facilities under there are very strict limitations on the scope of local authority over the placement of those facilities so i guess it's a yes it's a kind of a zero sum game in a way number of cases that have been decided under seven and i don't want to because of the language for example that i've just read to you i think that there's only one reasonable inference to be drawn from that language in those cases so i don't think it's in need of certification the whole purpose of the telecom after one of the purposes one of the important purposes is to expedite resolution of these disputes and the court might recall that we first applied for this first facility in december of two thousand and one which is almost four years ago these guys are just out of control here absolutely they can and the p c as i said does have guidelines that have to be followed and if they're not somebody can follow a complaint with the p c game but that is not discretion that  whether it's going to have any impact on the free flow of travel of course they have their normal police powers to i mean if it has an impact if it presents a threat to the public safety that's a different issue altogether now so what about this other issue of discrimination between sprint ri legitimate basis for distinction then i don't know how they're going to be any unreasonable discrimination claims ever because the one who's discriminated against is always going to come after somebody else who was approved so the fact that they  two companies is that wind was aesthetically more troops have more intrusive than the other hand again that is not a lawful grounds for denial of one of these applications under california state law an opportunity to respond to one point i really want to make is that it's sprint's if you look at the procedural history in this case that is the administrative  bent over backwards to try to satisfy both the city and the local residents with respect to the placement and the design of this facility we put it underground for the for the  facility i think if you take a look at that at the efforts that we made to satisfy both the city and the local residents you'll find that we have to at all times in good faith and we're not trying to create issues that don't exist we just ran out of choices just you down about four minutes you may wish to reserve that ok i think i'll try to come up with one closing comment  stand here as an alarmist and very simply you've been presented with a false dilemma and the closest analogy that i can give us to what we're really doing here today television commercial that's running even as we speak it's a sprint commercial and there's a man it's a desk and he says a centrally no one can tell me what to do i can do what i want i'm going to stick it to the man that's the television commercial running that's what i'm hearing today sprint maintains there is nothing the city can ever do save and except for there are skewed analogies and definition of believe that we can give a blanket answer to all utilities because i do believe there is a state wide franchise for telecommunication companies do i believe to take your question and apply it to sprint candidate for aesthetic purposes make determinations and dictate what sprint verizon next aleksandra do yes and i do not believe that is solely within the purview of the p s p and i do not believe it is inconsistent with seventy nine zero one seventy nine or one point one or the telecommunications of all under the telecommunications act before i get to the state portion of this one of the telecommunications act the act itself does not preclude the state and or the city of the local municipalities from exercising using substantial evidence aesthetics as a ground that's number one i disagree and agree with the district court but i disagree with sprint that you have to apply seventy nine no one even if you did that there's nothing in seventy nine zero one nor has sprint nor can they provide you with any case that said income mode which is the operative word we're dealing with here that income owed it's defined as obstruction income mode when you look in websters income and when you look a new line any dictionary you look at will say it means discomfort or consternation it can mean obstruction but i believe this on court when we dealt with metro p has talked about statutory schemes and whether interacting statues use the right word to use the words that was meant i mean i'm not making light when i say mark twain is the one that said the difference between the right word and the wrong word just the difference between lightning and lightning bug sprint is wrong and there is no case authority before you that says seventy nine zero ones use of the term incommode means only obstruction let's look at the rest of the statute it's such a manner such points as not to encumber the public use of the road or highway or interrupt navigation of waters what in that language gives the candidly this is a case of first impression before you i know of no case state or federal says seventy nine no one has a bright line contained within it that doesn't exist what i am suggesting to you is that if you look at the cases that we've raised and you look at the twenty five page argument probably the decision from the district court you're going to find references throughout of the federal courts deference to state decisions on aesthetic grounds i'll even go so far and step out on my own liam and direct the court to the recent cule of decisions where we're dealing with not the telecommunications act but certainly discussions by the supreme court asked to the importance in this country of the elimination of light and the consideration of aesthetics that's replete through the cases from the second district in fact which this court itself has said so correctly set the standard for the more importantly when you deal with cellular telephone company the oyster bay case that this court has referred to itself there's a full discussion of aesthetics and while the court said aesthetic cannot be considered if there's only a general concern there's no preclusion if there substantial evidence found that aesthetic concerns are permissible grounds and that's what the district court in this case found in a twenty five page written opinion that there were substantial grounds and it's not just aesthetics the just record also found that there was substantial evidence to support the arborists findings of damage to the troops this is not just an aesthetic concern this is the ability of local municipalities to control their city planning that is what city planning and i don't believe that seventy nine zero one the telecommunications act or any court was actually adopted it was my thoughts a little bit i need to also point out one thing the question was asked of sprint the distinction between horizon and them the ordinance was not in place one for writing came in and i don't think fair to follow the conclusion that sprint would have you do because it reaches the a logical point where every city is going to have to have a telecommunications expert on board and have the foresight and four knowledge to draft ordinances ahead of time and none of those people are going to work for the city they're all going to work for sprint there is no way to put toothpaste back in the two you can't say that sprint and verizon were treated  to regulate well i'm going to deal specifically again with telecommunications companies because i do think there's a distinction here i don't think we're going to treat a sewer line the way we're going to treat telecommunications that being that we've got the telecommunications act which has the umbrella over everything you then have the public utilities code which creates just creates the statewide franchise at that point the case law the case authority that we've cited to you and in fact cases that the ninth circuit itself has referenced indeed including the second circuit all then give deference and it is truly called de yes it would depend of course on where they're putting it are they going to put it in the easement behind your house i'm assuming that you would ask us to do that as the city the city would then have hearings and if there was substantial evidence as found in this case we w that limit the very very elaborate system with all kinds of input from engineering associations and experts of all kinds and they keep bringing it up to date from time to time yes and those rules no i'm saying that i don't think the city in this case has done anything inconsistent with the limitations that the p c has placed on support for the design that's a different question i'm just trying to understand the x think stance of the  i believe that the city and again i'm not an engineer but i believe that sprint as the record will reflect provided certain design criteria with some options to the engineers who then reviewed the p u c among other considerations because sprint brought in their own we're dealing with new technology here and that's going to continue to change i am not aware of any nor do i believe sprint can cite the court any the regulation de criteria or option that prohibits the city from making a ruling to location place and design i don't think they're mutually exclusive at this the bottom line here i think friends we've moved beyond what sprint from how can i help you to the corporate i can do what i want to attitude and candidly it's time for someone to take sprint's on model of yes you can and suddenly tell us right now you can't that's what the cities are attempting to do they want they just said thank you on a couple of points i hope the court doesn't really believe that sprint thinks they can do whatever it wants to do we've asked the court to recognize the rights that we have under state law and as i said if you look at the record of all of the efforts that we made to change this project changes location changes configuration what are the neighbors want what is the city why we went through that process for a long long time typically month process for something that should have been more than no more than a week and eight months for disconsolate so we tried very very hard to please everybody and finally ran out of choices second  california cases that's right and i don't believe it needs to go to the p c because all we're talking about here is whether the city can buy access our access to public rights of way on a static grounds alone now mr goldberg fuss about the trees on the instead of considerations but if you look at page five fifty one of the excerpts of record and i apologize for not knowing the volume but if you look at page five fifty one you will see the city's findings in support of the denial and the possible this and by the way this is a public right of way bomb ground construction permit in process the the underground  and that ordinance ordinance rate twenty four is the only ordinance on which the city rested its denial of a permit applications i may be confused here but i thought the problem here was above ground equipment that for whatever reason the city disapproved of we talking only about on the ground here with respect to well the above ground equipment i should have limited my comments for the ordinance for that pertains only to impact the tree roots from any underground installations ok but the civic problem here is that there is some above ground equipment that the city is disapprov not right these intense yes ok that's right that's right finally one last point the the district court i think the city agrees has said that well the phrase state and submitted for a decision and the court will take its morning rece