Hastings Communications and Entertainment Law Journal


In 1850, cutting-edge communications infrastructure took the form of telegraph poles and wires. The first Transcontinental Railroad would not be completed until the Golden Spike joined the rail lines at Promontory Point on May 10, 1869. The railroad right of way afforded an important avenue, allowing the new nation to be linked from coast to coast by the miracle of the telegraph's new technology. Today, 162 years later, the new technology is wireless broadband. An important avenue for its expansion and goal of universal coverage are the roads and highways of the state of California.

To meet exponential demand, wireless infrastructure developers are taking to the streets, much as their nineteenth century predecessors did. They are invoking the current version of the law enacted by the first state legislature 162 years ago, which allows a free access to the state's public ways under a statewide franchise granted to telegraph companies. The direct descendant of that law exists today as California Public Utilities Code section 7901. Unfortunately, recent judicial precedent emanating from the Ninth Circuit has misinterpreted the ancient law in its original intent and modern application, obscured its meaning, and muted its intended effects. The results have had untold effects on the ability of wireless service providers to deploy a competitive wireless broadband network in the state of California.