US Cellular v. Albion,ME: FCC Shot Clock Case

In what I suspect is one of the first FCC shot clock cases to be filed, now comes US Cellular v. Town of Albion, Maine.

In its amended complaint (which I have attached to this posting, below) US Cellular asserts that:

34. The Town’s failure to act on the Application “within a reasonable period of time” under Section 332(c)(7)(B)(i)(II) constitutes “a failure to act” under Section 332 (c)(7)(B)9v) permitting US Cellular to seek judicial relief pursuant to a Declaratory Ruling of the Federal Communications Commission, dated November 18, 2009, WT Docket No. 08-165.

35. US Cellular is accordingly entitled to an injunction directing the Town Planning Board to grant site plan approval for the Application for construction of its proposed telecommunications facility.

(Emphasis added; Complaint @ 34-35.)

Oddly, US Cellular’s attorneys apparently failed to read the FCC’s order carefully, which I have also attached, below.

The FCC order, in relevant parts, says:

[T]he [CTIA] Petition asks the Commission to find that, if a zoning authority fails to act within the above timeframes, the application shall be “deemed granted.”

(Order @ 10.)

[W]e find that a “reasonable period of time” is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications. Accordingly, if State or local governments do not act upon applications within those timeframes, then a “failure to act” has occurred and personal wireless service providers may seek redress in a court of competent jurisdiction within 30 days, as provided in Section 332(c)(7)(B)(v). The State or local government, however, will have the opportunity to rebut the presumption of reasonableness.

(Order @ 32 [internal footnotes omitted].)

We reject the Petition’s proposals that we go farther and either deem an application granted when a State or local government has failed to act within a defined timeframe or adopt a presumption that the court should issue an injunction granting the application. Section 332(c)(7)(B)(v) states that when a failure to act has occurred, aggrieved parties should file with a court of competent jurisdiction within 30 days and that “[t]he court shall hear and decide such action on an expedited basis.” This provision indicates Congressional intent that courts should have the responsibility to fashion appropriate case-specific remedies. As the Petitioner notes, many courts have issued injunctions granting applications upon finding a violation of Section 332(c)(7)(B). However, the case law does not establish that an injunction granting the application is always or presumptively appropriate when a “failure to act” occurs.125 To the contrary, in those cases where courts have issued such injunctions upon finding a failure to act within a reasonable time, they have done so only after examining all the facts in the case. While we agree that injunctions granting applications may be appropriate in many cases, the proposals in personal wireless service facility siting applications and the surrounding circumstances can vary greatly. It is therefore important for courts to consider the specific facts of individual applications and adopt remedies based on those facts.

(Emphasis added; Order @ 39 [internal footnotes omitted].)

FCC Chairman Julius Genachowski, in his separate statement regarding the Commissions adoption of the shot clock rule, said

The decision we reach today does not grant the full relief that the industry’s petition seeks—for example, the petition argued for a shorter set of deadlines, and a requirement that zoning applications be “deemed granted” as soon as the deadlines expired. I believe that the timeframes we adopt today, and the requirement that parties seek injunctive relief from a court, are more consistent with preserving State and local sovereignty and with the intent of Congress.

(Statement of Chair Genachowski @ pg. 2.)

So, while the Shot Clock order may have opened the doors to the federal courts for U.S. Cellular, its assertion it “is accordingly entitled to an injunction directing the Town Planning Board to grant site plan approval for the Application for construction of its proposed telecommunications facility” is inconsistent with the ruling set down by the Commission.

It now turns to the Town of Albion to rebut U.S. Cellular’s assertion that its review, exceeding 150 days, was unreasonable.  If it is successful in doing so, then the court should deny U.S. Cellular the relief it seeks.

U.S. Cellular v Town of Albion, ME0911929287

FCC 09-99 Shotclock Order


Walnut Creek, CA Ponders Siting Moratorium

City of Walnut Creek LogoOn November 16th at 7:00 p.m. the City Council of the City of Walnut Creek will consider adopting a wireless moratorium while it considers creating a new wireless ordinance.

The City Council conducted a study session last Thursday to hear from the public.  Carriers were present at the study session, but according to published reports they did not speak at the meeting.

Here is the agenda item (No. 4a):


Wireless communications facilities, including cellular telephone antenna, proposed to be located in the City require a conditional use permit and/or design review approval pursuant to the City’s Wireless Communications Facilities Ordinance (Walnut Creek Municipal Code section 10-2.3.120). While these facilities are commercial in nature, at times cellular telephone companies propose to locate these facilities in residential or open space areas.  As indicated by the City Council at its special meeting on November 10, 2010, the City Council will consider adopting a moratorium on construction of new wireless communications facilities in residential or open space areas pending consideration of a work program to amend the Wireless Facilities Communications Ordinance. Staff Contact: Paul Valle-Riestra, City Attorney, (925) 943-5813.

Proposed ordinance is forthcoming

Paul Valle-Riestra, Walnut Creek’s City Attorney, is also an outstanding telecom lawyer. This should be interesting!


No Clear Path for Clearwire

Clearwire is undergoing a capital squeeze that may leave it unable to continue as an ongoing business.  The issues that face the company are clearly set out in its most current SEC 10Q report (dated 11/4/10), which contains this passage:

Liquidity Issues

We are at an early stage of implementing our business strategy. Since formation, we have invested significantly in our business and experienced substantial losses from operations and negative cash flows. During the first nine months of fiscal 2010, we incurred $1.55 billion of net losses. We utilized $840.8 million of cash in operating activities and spent $1.96 billion for capital expenditures in the development of our network. We do not expect our operations to generate positive cash flows during the next twelve months.

As of September 30, 2010, we had available cash and short−term investments of approximately $1.38 billion. Based on our current projections, we do not expect our available cash and short−term investments to be sufficient to cover our estimated liquidity needs for the next twelve months. Without additional financing sources, we forecast that our cash and short−term investments would be depleted as early as the middle of 2011. Thus, we will be required to raise additional capital in the near−term in order to continue operations. Further, we also need to raise substantial additional capital over the long−term to fully implement our business plans.

We are actively pursuing various initiatives aimed at resolving our need for additional capital. We are in discussions with a number of our major shareholders and other third parties about a number of options, including  potential strategic transactions, additional debt or equity financings and/or asset sales. A special committee of our Board of Directors has  been formed to explore strategic alternatives, including transactions that may involve a sale or other realignment of the ownership and governance of our company.  Additionally, at the same time, we are holding discussions with various parties with respect to securing additional  financing. Any financing transaction would likely include selling additional equity or debt securities issued by us or our domestic or international subsidiaries. Any additional debt financing would increase our future financial commitments, while any additional equity financing would be dilutive to our stockholders. Our ability to raise sufficient additional capital in the near and long−term on acceptable terms, or at all, remains uncertain. Lastly, we believe that the fair market value of our spectrum portfolio exceeds our outstanding liabilities and that a portion of our spectrum is not essential to our business. Thus, we have initiated a process whereby we are seeking bids to potentially sell the excess  spectrum assets to raise additional funds to continue to operate.  However, the process is at an early stage, and there can be no assurance that we will be able to sell a sufficient
amount of spectrum on terms acceptable to us.

We are also actively pursuing a number of initiatives intended to reduce costs and conserve cash, including: suspending development activities for sites not required for our current build plan; delaying the launch of new end user devices such as Clear branded smartphones; substantially reducing sales and marketing spending; making reductions to discretionary capital projects; substantially reducing the number of contingent workers and reducing our employee numbers by approximately 15%. We currently have thousands of sites in various stages of planning and construction beyond our current build
plan, and we intend to suspend zoning and planning in a portion of those sites. These contemplated initiatives are intended to result in potential cost savings of between $100 million to $200 million in 2010 and again in the first half of 2011. However, we may not realize the full amount of savings we expect as a result of these initiatives. Even if these initiatives do result in the anticipated cost savings, we will still be required to obtain sufficient additional capital.

Our ability to continue to operate our business is substantially dependent on our ability to raise additional capital in the near term. As discussed above, we are actively pursuing a number of possible funding options, but there can be no assurance that these efforts will be successful. Our expected continued losses from operations and the uncertainty about our ability to obtain sufficient additional capital raise substantial doubt about our ability to continue as a going concern.

Clearwire’s next steps are outlined, but it is far from clear that this technology firm will continue in business, or continue as it currently exists.

The impact on Clearwire site landlords cannot be overstated.  If Clearwire goes into bankruptcy, site landlords without specific lease protections may find themselves out of rent, and out of luck for months or years, any may only collect a percentage of rent due, if any.

These are trying times for Clearwire; hopefully the firm will survive and provided needed competition in the wireless arena.

If you would like to read the entire 10Q report, you can do so by clicking here:  Clearwire Corporation’s SEC 10Q Report dated 11-04-2010 (PDF format).


AGL Magazine San Francisco Wireless Conference

Above Ground Level (AGL) Magazine is sponsoring a one day regional conference in San Francisco on December 3, 2010.  The very interesting topics are listed below, including the session I’m leading, “How to Influence the Adoption of  ‘Good’ Wireless Ordinances.”

7:00 am – 8:00am Continental Networking Breakfast
8:00 am – 9:15am 4G, Whitespace, Pico Cells, Wi-Fi, Super Wi-Fi: What Do They Mean to Today’s Tower Company?

As the wireless world hurtles toward the high-speed data future, there will be a dramatic increase in the number and types of antenna/tower sites required. How can carriers and tower owners meet the demand? Distributed antenna systems (DAS) will play an ever increasing role. What are the challenges and opportunities in deploying DAS? And how can carriers and tower operators meet the backhaul capabilities required by a staggering increase in digital traffic? These issues will be addressed in depth by a distinguished panel of industry experts.


Don Bishop, Executive Editor, AGL magazine (moderator)

Ted Abrams, Abrams Wireless

Brian Allen, TowerCo

9:20am – 9:40am A Political Campaign Approach to Win Siting Approvals

Scott Ingham, The Elliott Bay Group

Political campaign-style strategies and tactics can effectively blunt siting opposition by mobilizing citizen support for better coverage, especially in more challenging jurisdictions like San Francisco. There are several objectives to using a political strategy to help get sites approved and on-air: identify and educate target advocates; bring wireless siting advocates to the table early and often in support of applications; and level the siting playing field and neutralize the increasing success of siting opponents.

9:45 am – 10:45pm Roundtable Discussion on using a Political Campaign Approach to Win Siting Approvals


Scott Ingham, The Elliott Bay Group (moderator)

Andrew Thibault, Partner, EMC Research

Tasha Skinner, Real Estate Manager, AT&T Mobility

Marian Vetro, T-Mobile

10:45m – 11:00pm Break
11:00 am – 12:00 pm The Art of Negotiation: Lease Optimization in the 4G World

With the introduction of 4G and other next generation technologies, all of the signs point toward a flood of amendments at towers across the country as well as the need for additional sites. Does this give tower companies the upper hand in lease negotiations? Or can the carriers successfully keep a lid on rising rental prices?


Richard P. Biby P.E., Publisher, AGL Magazine (moderator)

Adam Kauffman, Managing Director, NTP Wireless

John Paleski, Owner, Subcarrier Communications

Thomas Leddo, VP Operations, Md7

12:00m – 1:00pm Lunch Networking Break
1:00 pm – 2:30 pm Using a Public/Private Approach to Addressing Zoning Challenges

The Silicon Valley Joint Venture’s Wireless Communications Initiative brings together wireless service providers, cities, businesses and users to improve wireless service in the Valley and eliminate dead spots. The consortium builds on existing relationships with municipal governments to lead a coordinated public-private sector effort and mounts a highly strategic campaign to transform Silicon Valley’s wireless data & communications infrastructure.


Patti Ringo (moderator)
Director, West region Municipal Relations, ExteNet Systems

Leon Beauchman, Area Manager, External Affairs, AT&T

2:30pm – 2:45 pm Break
2:45 pm – 4:00 pm Is there such a thing as a good wireless ordinance?A growing number of municipalities are adopting wireless ordinances. Some of these rules have a broad impact on both macro-cell and DAS siting. Who writes these ordinances? What are the components of an ordinance? How much does one town’s ordinance differ from another and why? What makes these ordinances harmful to the wireless industry and what can it do about?


Jonathan Kramer, Kramer Telecom Law Firm (moderator)

Natasha Ernst, Director of Government Relations, NextG Networks, Inc.

Jeannie Hamilton, Division Manager, Department of Building and Code Enforcement, City of San Jose

Suzanne K. Toller, Partner, Co-chair, Communications Practice, Davis Wright Tremaine

Harriet A. Steiner, Partner, Best Best & Krieger LLP

4:00pm – 5:00pm Changes in Federal Regulations: What You Should Know to Operate Towers

The rules regarding towers are in a state of flux as the FCC and FAA streamline their processes. Change in regulation is also the constant as regulators hustle to keep up with the evolution on technology. This panel will cover changes in rules concerning tower lighting and marking, the Draft MOU between FEMA and the U.S. Fish and Wildlife Service, pole attachment rules, the FCC’s Antenna Structure Registration (ASR) program, as well as new services such at the FCC’s Spectrum Dashboard.


Julian K. Quattlebaum, III, Channel Law Group, LLP (moderator)

Jon Dohm, AICP, Zoning Manager, West Area, Crown Castle International

John Koos, Co-Founder, Core Development Services

5:00 pm Closing

Highly recommended, and very reasonably priced at $75.00 for the full day.

For meeting registration and very discounted hotel reservations, please CLICK HERE.