Wireless firm appealing to 9th Circuit

The wireless company that sued the city of Newport Beach for denying five proposed antennas has appealed to the 9th Circuit U.S. Court of Appeals after a federal judge ruled in the city’s favor.

At issue are roughly 30-foot poles with antennas that could provide voice and data service to subscribers of various mobile carriers. NextG applied last year to build the poles in places stretching from West Newport to Corona del Mar, and to attach two antennas to existing utility poles.

Residents protested and the City Council in July denied the five new poles but approved those two existing pole permits.

NextG sued in August, claiming that the city did not give enough evidence to deny the poles, as would be required under the Telecommunications Act of 1996. Cities have the authority to deny such wireless installations based on aesthetics and other grounds, some courts have ruled.

Newport’s law says the council must find that the poles would be detrimental to nearby property owners or that they are not absolutely necessary for the company to provide sufficient service.

By granting the city’s motion for summary judgment, U.S. District Court Judge David O. Carter ruled that Newport was justified in denying the applications. He also said the city could collect its legal fees.

In another claim, NextG said the city was charging it to place the poles in the public right of way, which is illegal under state law. Newport had offered to let NextG install its antennas on city light poles, and it wanted to charge $1,500 per month.

The company said that was not financially feasible.

In its response, the city argued that while the light poles may be in the public right of way — the area along the sides of roads where such equipment is located — it was actually charging for the space on city property.

City Atty. David Hunt said the $1,500 is a standard charge.

But NextG rents out infrastructure in other cities for far less, said Patrick Ryan, the company’s vice president of government relations and regulatory affairs.

Instead of ruling on the question of charging in the public right of way, Carter deferred, saying federal court was not the right venue to try the state law question.

NextG Networks of California filed the appeal of both decisions last week. Its opening brief is due in August.

NextG is one of several companies to sprout up in recent years that act as middlemen between major cell phone companies and their users.

The company sets up a distributed antennae system, a smaller, more nimble cell phone antenna that expands a major company’s cell phone coverage. Major cell phone companies contract out with the smaller companies to use their equipment, or “nodes,” to improve their coverage.