CRYSTAL COVE STATE PARK — He fought powerful interests: Caltrans,
Dale Ghere, then a high school biology teacher, spent the late 1990s eradicating a towering brush from swaths of Crystal Cove State Park. The saltbrush was blocking views — not from his home — but from Coast Highway, where he rode his bike each day.
Everything was clear until May, when a
"They just don't get it. People have been working for four decades to get this park developed," Ghere said, agitated. "For me it's just one more little chink, just one more little thing that gets in the way of the open space."
The Crystal Cove case, similar ones in nearby
"You have technology that evolves really fast, and you've got existing law that's designed for the tall cell towers," said
In the past two years, the number of "nodes" in the U.S. has roughly doubled, to about 20,000, according to Joe Madden of Mobile Experts, a Silicon Valley research firm that specializes in DAS and other mobile technologies. Just five years ago, there were close to none.
DAS companies carefully calculate risk when entering a new market. If the permitting process through the city or county is too cumbersome, they might apply for permits and sue if denied. Or they might install equipment without approvals usually required for cell towers.
San Jose-based NextG Networks, the company that built near Crystal Cove, obtained a permit from Caltrans to install equipment in the highway's right-of-way. That surprised Todd Lewis, the Crystal Cove superintendent. When they discovered the pole, he and other officials demanded the crews stop work.
"It goes directly against what the park stands for, which is preservation of the natural environment," he said at a Newport Beach City Council hearing earlier this month.
NextG had proposed a number of antennas in Newport Beach, and the council denied most of their applications (some Newport Beach officials expect a lawsuit).
At another location, park officials found a NextG antenna (attached to an existing pole) that they say was installed on park land without their permission. NextG contends it was on Orange County land and they didn't need a permit from the county. Park officials demanded NextG take down the equipment, especially since that section of Crystal Cove is being converted to underground utilities.
NextG removed the antenna, and has also agreed to apply for a Coastal Commission permit for its new pole along Coast Highway, which it offered to move to the inland side of the road.
"If a city's process is not unreasonable, we will typically take the path of least resistance," said Patti Ringo, the West region director of municipal relations for ExteNet Systems, one of the largest DAS companies. "It's a heck of a lot better than spending two years in court."
But court has been a popular choice.
And they've often lost.
A typical scenario goes like this: a mobile carrier, such as AT&T,
Next, the city might deny the application, saying the antennas and poles have to look a certain way or they must be in a certain place. At this point, the DAS company argues it should be treated like other public utilities (electric, cable or phone companies) that can often bypass local planning review. In court, judges cite a patchwork of state and federal laws and often agree with the DAS group.
SPEED VS. COMMUNITY REVIEW
The rush to cover spotty cell zones such as Crystal Cove and Laguna Beach, places of natural beauty that also see a demand for phone service from drivers and visitors, prompts much of the conflict.
NextG also installed an antenna and equipment near Rose Mallett's Laguna Beach home. Her front porch overlooks a row of homes and, past the roofs and under utility wires, you can clearly see a stretch of the Pacific.
That was until crews hung a black box from a low utility wire. As Mallett, 60, rocked in her hammock, she couldn't get it out of her line of sight. Enraged, she called the city. What she found out surprised her even more: The company installed it without a city permit.
In many places DAS companies are able to proliferate quickly. Unlike large towers on another party's land, which could require a lengthy planning review, DAS nodes might only require a procedural encroachment permit to build in the public right-of-way.
The California Public Utilities Commission gives a DAS company the ability to build there when it grants a certificate of public convenience and necessity.
"It's pretty clear that the PUC didn't envision that this is what they were going to install," said Kang from UCLA. "The technology ran in a different direction from what the permission meant to be."
NextG ran afoul of the PUC in 2009 when it dug into the public right-of-way without a full certificate, and the commission fined it $200,000. Since then, NextG has obtained the necessary PUC approvals to build in the rights-of-way.
Speediness makes DAS sexy in
"One of reasons the DAS market has grown so quickly is because you can act quickly," Madden from Mobile Experts said. "Time to market is a big factor for these companies."
NextG rushed to install the equipment by Mallett's Laguna Beach house because the permitting process was taking too long and a competitor had already installed nodes, a company representative said at a planning commission hearing.
"Just the idea that they came in without permission," Mallett said. "It was just business for them. They didn't care about how it affected us."
One of the biggest forces behind the DAS push is the surge in smartphone use and the demand for more data capacity. An FCC report anticipates that North American mobile customers will use 40 times more data in 2014 than they did in 2009. Both the California PUC and the FCC have initiatives to expand broadband access.
Major financiers see the potential and have backed DAS companies, including Soros Fund Management and Madison Dearborn Partners, a private equity firm.
"I don't think your average wireless user understands why it's so important to have wireless infrastructure," said Mike Saperstein, the director of government affairs at PCIA, the wireless infrastructure association. "The infrastructure needed is just like electricity and railroads of yesterday."
Residents usually try to block installations with complaints about health, lower property values and aesthetics. But compared with the large cell towers, the nodes create a much softer impact, on all three fronts. Ultimately, it requires many more antennas to cover the same area as a tower, so the complaints can add up.
In Laguna Beach, a city of nine square miles, NextG anticipates it will install 50 nodes.
"It's the proliferation of 48, 50 sites, and then the next company want to come in and do the same thing," Laguna Beach Planning Commissioner Robert Whalen said at a recent hearing.
As a general defense, representatives from NextG and ExteNet say that they have approval from the PUC to place equipment in the right-of-way, the health risks are minimal, and that they usually go through the municipal approvals process.
Also, they say cell phone subscribers may benefit from better mobile service. DAS was created around 2005 to fill in areas with hills and canyons, where traditional cell towers cannot reach. It has since been used in stadiums, subways and resorts (called indoor DAS).
Mobile carriers sometimes install their own DAS systems.
"We really view ourselves as a member of the community, and we're committed to open processes," said Ken Muche, a spokesman for Verizon. "We expect the same from those we do businesses with as well."
In Irvine, Seattle-based NewPath Networks applied for permits to build 23 antennas in the Turtle Rock neighborhood, a small manicured hamlet with rolling hills and carefully-planned streets.
Residents protested. Eventually, the city denied the applications and NewPath sued Irvine in 2006. After a series of rulings, the case is now set for trial in September in Judge James Selna's U.S. District courtroom in
If health concerns ever arise in a case, DAS companies, courts and cities have an easy reply. The FCC Telecommunications Act of 1996 says that local governments can't deny a cell antenna application based on radiation fears.
DAS antennas generally emit radio frequency energy well below the maximum amount permitted by the FCC. While some studies point to
Besides that basic health issue, cities are generally confused about how they can or cannot regulate DAS. Most ask for proof of a "significant gap" in coverage. Others try to get screens to hide the antennas.
At a July meeting, one of the Laguna Beach planning commissioners suggested that NextG hire local artists to paint the boxes.
"This is an arts community, and I think it's time cell companies and their installers think outside the box," Commissioner Linda Dietrich said.
City officials are often unsure which laws apply to DAS companies because courts have sometimes contradicted themselves on the rights of local jurisdictions to regulate cellular antennas.
In 2008 the U.S. 9th Circuit Court of Appeals ruled in favor of
"One of the reasons they have these lawsuits is that the municipalities are not always clear on the DAS companies' rights," said Julian Quattlebaum, a Los Angeles Attorney who is representing NewPath in the lawsuit against Irvine. "They treat it as any other zoning, but it's not."
City of Davis officials started a fight when they rescinded permits granted to NewPath in December. The company had applied for permits to install 24 antennas on new or existing poles. Davis officials say NewPath representatives convinced them they didn't have to go through the planning review process.
"There was confusion about what laws they fell under, what regulations they fell under," said Kelly Stachowicz, assistant city manager in Davis. "We issued the permits believing we had no other option."
But when residents complained last November about crews installing 40-foot poles in front of their homes, the city told NewPath it had to undergo a full review.
Now, gaping holes dot Davis where the city demanded NewPath stop construction. The two parties plan to meet in court.
One of the points Davis is challenging involves environmental review of DAS networks. The California PUC has given cities full authority to scrutinize large cell towers under the California Environmental Quality Act, but the PUC generally gives DAS antennas an exemption. The PUC is also scheduled to rule on some of these matters by August.
The complicated state, federal and local laws boggle many involved with DAS, especially local officials.
Some cities have let DAS companies pass through with relative ease. In both Palos Verdes Estates and Del Mar, NextG obtained right-of-way agreements and had little trouble attaching equipment to utility poles, the Palos Verdes Estates city manager Joe Hoefgen said. He also served as assistant city manager in Del Mar.
"But they were a lot more visible than people thought it would be," Hoefgen said of Palos Verdes Estates.
DAS equipment was often the lowest on the utility poles and in residents' line of sight, he said.
Some people are willing to live with the intrusion.