Cell Tower Dies in Cemetery

According to the Associated Press, the plan for a 200′ tall cell tower intended to live in a Ellisville, Mississippi cemetery has died.

Proposed by Cellular South, and agreed to by the Ellisville zoning board, the City Council of Ellisville killed the tower project due to citizen concerns.

No, I don’t know if the concerned citizens were dead, but Cellular South has agreed to find another location for the tower.

So many jokes…so little time.


LightSquared Turning Into LightQuartered

LightSquared, based in Reston, Virginia, is a nascent  provider of 4G services to wireless carriers.  Or, they’d like to be.  They are looking at some difficult times ahead in their initial roll-out.

The NTIA has expressed concern to the FCC that LightSquared will cause interference to GPS receivers, degrading or blocking location information for wireless handsets.  You can read that letter for yourself by clicking on the link below.


The government agencies concerned about GPS interference are  Departments of Defense, Transportation and Homeland Security.


Today, the aviation industry joined in expressing concerns regarding GPS interference.  The FCC has posted letters it has received from Hawker Beechcraft Corp., Diamond Aircraft Industries GmbH, and the National Business Aviation Association (a aviation-industry trade group).


This should be interesting!



Current Issues in Cell Tower Leases

March 3, 2011: 2 hour live teleconference
1 pm ET (12 pm CT, 11 am MT, 10 am PT)

Teleconference Highlights:

The wireless industry has built more than 250,000 cell sites in the United States in the past 20 years. But many more cell sites are needed as iPhones, iPads and the like strain existing network capacity with data, email, computer and video applications, as well as to fill gaps in coverage. New cell sites and significant modifications to existing cell sites will also be needed due to the FCC’s new advanced wireless services and goal of using wireless to increase broadband speeds and coverage.

This audio conference will help level the playing field by providing private and municipal property owners with the expertise of two faculty members highly experienced in cell tower and cell site leases – property owners usually are negotiating such leases for the first time, while the cell companies have teams who work exclusively on such leases.

This audio conference will focus on key business issues in wireless site leases, including lease rates, who gets the revenues from additional antennas or carriers being co-located at a site, potential underpayments by cell companies on existing sites and why rent reduction requests generally should be denied. An emphasis on the industry-specific elements and terms of modern cell site leases, and renewals and modifications of expiring leases, which are important for the property owner, their attorney and the leasing agent involved in these efforts. You will be better able to identify and resolve issues that are unique to wireless siting, including what may be included in a lease that cannot be included in a government-issued permit, site location and value, lease term and terminations, access requirements, interference regulation and mitigation, design and camouflage, and radio frequency emissions issues.

Learning Objectives

  • You will be able to maintain and increase the revenues the property owner receives, and discuss the common elements of private wireless site leases on developed and undeveloped land.
  • You will be able to utilize practice pointers, including key concepts, for owners of private property and their attorneys, as well as municipalities and municipal attorneys.
  • You will be able to understand the basics of wireless technology and the real property, technical and technology issues that drive a wireless carrier’s siting and leasing process.
  • You will be able to review insurance and indemnity provisions to protect the property owner.

Faculty Information

John W. Pestle, Esq., Varnum LLP
Jonathan L. Kramer, Esq., FSCTE, BTS, BDS, BPS, Kramer Telecom Law Firm, P.C.

MCLE/Educational Credit Information

  • AIA
  • AICP (Pending)
  • CC
  • CLE
  • ENG
  • PMI

Who Should Attend?

This audio conference is designed for attorneys, planners, directors of development, project managers, government administrators, council and board members, land use officials, public works and utilities directors, municipal government officials, engineers, architects, surveyors and real estate professionals.

5 Easy Ways to Register:
Online: www.lorman.com
Phone: 1-866-352-9539
E-mail: customerservice@lorman.com
Fax: 1-715-833-3953
Mail: Lorman Education Services, Dept 5382, PO Box 2933, Milwaukee, WI 53201-2933
Seminar ID: 387436

Verizon’s iPHONE is here, sort of…

Today, as expected, Verizon announced the imminent availability of the super-duper Verizon iPhone.

(Pssssst….Don’t tell anyone, but…) The first generation of VZW iPhones won’t be able to access Verizon’s 4G-ish Long Term Evolution (“LTE”) network.

Essentially, the early adopters of Verizon’s iPhones will have a three-speed transmission.

Fast at three speeds?

Yeah, sort of, but not as fast as the follow-on versions of the Verizon iPhone that will include access to the optimized 700 MHz LTE band.  The next generation will have the 5-speed transmission with overdrive, and will have access to the carpool lanes.

Me? I think I’ll wait for the real zoomer when it’s announced in 4 or 5 months.

Let others buy the first generation of VZW iPhones and pay to replace them later.  I’ll shell out my money only after the V.1 beta-testers have done their thing.



2011 Prediction: AT&T Data Network to Speed Up

I predict that AT&T’s data network will experience a noticeable increase in throughput speed throughout 2011.  That’s great news for AT&T, and they can thank Verizon for helping to achieve that goal.

Of course, while AT&T struggles to deploy its LTE network, it’s goal of speeding its network will be aided in no small part by Verizon’s expected announcement, on Tuesday 1/11/11 (perhaps at 11:11:11?) that Verizon will finally offer its subscribers an Apple iPhone.

Verizon’s recent announcement that it, too, now calls its data network “4G” just like T-Mobile (…who knew?) sets the stage for heightened expectations, discovery of data holes in Verizon’s network, and other fun stuff.

Years ago I switched to Verizon from AT&T because AT&T’s voice network was inferior in terms of reliability.  Until a couple of years ago I wasn’t a data user, but I switched to a VZW Crackberry.  Last year I dumped the Crackberry Curve for a Motorola Droid 2 (it’s a good firmware/software platform in a fat, clunky body with a battery demanding nightly recharges…look at HTC, instead of Motorola).

Yeah, when VZW does offer the iPhone, it’s virtually certain that I’ll join the million or so other users switching from AT&T and upgrading from within Verizon.  Yes, I’ll be part of the problem; not part of the solution.

As a tip for you unhappy AT&T iPhone users: You can always use your existing GSM iPhone on T-Mobile’s new “4G” network.  If you jailbreak your phone and go to T-Mobile, you DO NOT  have to buy an expensive new iPhone like you would if you want to go to VZW’s sysetm.  That’ll make all of us existing Verizon users very happy, too!


PS: I also predict that 2011 will see (1) huge subscriber churn and net subscriber loses for AT&T, and (2)  someone in a wireless marketing department deciding that it’s time to call their network 5G!  I’m waiting for 9G, myself. -jlk


Going to Deny a Site in Nebraska? Better Do it Right.

US District Judge Richard Kopf has, again, set out the minimum ‘in writing’ and ‘substantial evidence’ standards for a Nebraska local government intending to deny a wireless site application.

On December 23, 2010, Judge Kopf granted a motion for summary judgment sought by Viaero Wireless to require the Village of Doniphan, Nebraska to issue the required permits to permit Viaero to construct a new wireless site within the Village.

Viaero argued that the Doniphan Board of Trustees’ denial of its CUP application violated § 332(c)(7)(B)(iii) of the TCA because the Board’s decision was not in writing or supported by substantial evidence contained in a written record.  Judge Kopf agreed.

In his decision, Judge Kopf cited the facts from the record:

During its regular monthly meeting on February 8, 2010, the Doniphan Board of Trustees considered and held a public hearing to receive public comment on Viaero’s CUP application. A Viaero representative attended the meeting and made a Power Point presentation to the Board in support of Viaero’s CUP application. The representative also answered questions posed to him from both the Board and various citizens attending the meeting.   No motion was made to approve the application and no action was taken to approve or deny the application at that meeting.   With respect to the CUP application, the  February 8, 2010 meeting minutes only state:

The Public Hearing to receive public comment on a conditional use permit application from Viaero Wireless to construct a wireless communication tower in the 200/300 block of North First Street opened at 8:00 p.m. Chris Riha, Site Acquisition Manager with Viaero Wireless gave a power point presentation detailing plans for the tower, and its location. He also addressed common concerns with this type of structure and answered questions. There were several residents and property owners of the Village who were present for the discussion. The 80 foot self supporting lattice tower would be located to the north and east of White Farms Trucking and is needed in order to improve cell phone coverage for customers in the Doniphan area. The tower would be surrounded by a chain link fence housing a back up generator, a buried 1,000 gallon propane tank and an aggregate building to store the electronic equipment. The Board heard numerous concerns and comments from members of the public in opposition to the tower’s location, which is near a residential district. The overall feeling from the public was that the tower needed to be moved away from the housing area to a more suitable location. After a lengthy discussion the Public Hearing closed at 9:36 p.m. Chairman Treat then called for a motion to approve the Conditional Use Permit application from Viaero Wireless to construct a wireless communication tower in the 200/300 block of North First Street. No such motion was made, therefore no action was taken by the Board and the Conditional Use Permit was not approved.

Viaero’s CUP application was again considered by the Doniphan Board of Trustees at a meeting held on March 8, 2010. No additional testimony on Viaero’s application was taken by the Board at that meeting. However, one of the trustees made a motion to deny the application. That motion was seconded and passed unanimously. There was no discussion by the Board of any reason for denying the application. The Board’s minutes for its March 8, 2010 meeting say only, “[a] motion was then made by Jenkins, seconded by Haile to deny the Conditional Use Permit Application from Viaero Wireless. Motion carried unanimously.”

(Internal citations omitted)

Judge Kopf explained:

The TCA requires that “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii) (emphasis added). In USOC of Greater Iowa, Inc. v. City of Bellevue, Nebraska, 279 F. Supp.2d 1080, 1084-85 (2003), a case with facts similar to those presented here, I concluded that in order for a decision by a local government denying a request to place, construct or modify personal wireless facilities to be “in writing” for purposes of this section of the TCA, it must: “(1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.” Id. at 1084-85 (2003) (quoting New Par v. City of Saginaw, 301 F.3d 390, 395-96 (6th Cir. 2002)). The Doniphan Board of Trustees’ decision denying Viaero’s CUP application is insufficient under this standard.

The decision to deny Viaero’s application is only noted in the minutes of the March 8, 2010 Board meeting. As was the case in USOC of Greater Iowa, these meeting minutes merely reflect that the application was unanimously denied. The minutes do not contain stated reasons for the denial or an explanation of how the decision was reached. [The Village] argues that the combination of the meeting minutes from the March 8, 2010 meeting and the February 8, 2010 meeting satisfy the “in writing” requirement. The court disagrees. While the February 8, 2010 minutes give some general indication as to what evidence was presented at the hearing, there is no explanation as to why the Board ultimately denied the application.

Defendant urges the court to reconsider its decision in USOC of Greater Iowa and find that any decision that is “in writing,” including a decision reflected in written meeting minutes, should be held to satisfy the “in writing” requirement contemplated by the TCA. The court declines to do so. As I concluded in USOC of Greater Iowa, “permitting local boards to issue written denials that give no reasons for a decision would frustrate meaningful judicial review, even where the written record may offer some guidance as to the board’s rationale.” USOC of Greater Iowa, 279 F. Supp.2d at 1084 (quoting Southwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001)). This reasoning remains sound. Without a decision adequately explaining the reasons for the denial, it is difficult, if not impossible, for a reviewing court to evaluate the evidence in the record supporting the reasons for the denial.

Further, even assuming that the “in writing” requirement was satisfied, the Board’s decision would nevertheless violate the TCA because it is not “supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii.) “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” USOC of Greater Iowa, 279 F. Supp.2d at 1085 (quoting Mississippi Transp. Inc. v. NLRB, 33 F.3d 972, 977 (8th Cir. 1994)).

Further, even assuming that the “in writing” requirement was satisfied, the Board’s decision would nevertheless violate the TCA because it is not “supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii.)
“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” USOC of Greater Iowa, 279 F. Supp.2d at 1085 (quoting Mississippi Transp. Inc. v. NLRB, 33 F.3d 972, 977 (8th Cir. 1994)).

Under the substantial evidence standard we cannot substitute our determination for that of the administrative fact-finder just because we believe that the fact-finder is clearly wrong. If the Board’s findings are supported by some substantial level of evidence (but less than a preponderance) on the record as a whole (contrary evidence may not simply be ignored on review) so that a reasonable fact-finder could reach the same conclusion as did the Board, the Board’s decision must be affirmed. We will not reject the Board’s decision as unsupported by substantial evidence because there exists the possibility of drawing two inconsistent conclusions for the evidence.

Sprint Spectrum, L.P. v. Platte County, Missouri, 578 F.3d 727, 733 (8th Cir. 2009) (quoting USCOC of Greater Iowa v. Zoning Bd. Of Adjustment, 465 F.3d 817, 821 (8th Cir. 2006) ).

Defendant contends that substantial evidence supporting Defendant’s decision is contained in the minutes from the Board meeting held on February 8, 2010. In particular, Defendant points to the minutes’ reference to numerous public concerns and comments in opposition to the tower’s proposed location, which is near a residential district. With respect to these “public concerns,” the meeting minutes only state that “[t]he overall feeling from the public was that the tower needed to be moved away from the housing area to a more suitable location.” (Filing 24-3 at CM/ECF p.2. ) While public concerns can, in some instances, serve as substantial evidence, layperson residents’ generalized comments about aesthetics and property values are insufficient and, from the record presented here, there is no way of determining what the precise citizen concerns were. See USOC of Greater Iowa, 279 F. Supp.2d at 1086 (finding that generalized property value concerns by laypersons are insubstantial); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 496 (2d Cir.1999) (finding that “generalized expressions of concern with ‘aesthetics’ cannot serve as substantial evidence” for denying a permit); Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 409 (3d Cir. 1999) (concluding that generalized concerns about property values and visual impact does not constitute substantial evidence). Moreover, there is no evidence that Viaero’s CUP application was denied based on the public comments referenced in the meeting minutes. There simply is no substantial evidence in a written record to support the Board’s decision.

Substantial evidence in the record, and written decisions based on the substantial evidence…  The formalities count, and Judge Kopf has confirmed that once again.

Case No. 4:10-cv-03059






An Interesting AT&T Cell Site Opposition Music Video

AT&T has a pending proposal to install a new tower overlooking Granite Lake, NH, about 15 miles east of Keene, NH. While it’s not a surprise that there is some community resistance, what is a surprise is the quality and effectiveness of this opposition video published by “Cucchicru” at YouTube. This is worth a bit over 5 minutes of your time.

The video quietly makes its point using only images and music. The ‘Before’ music is “Carry Me Across the Mountain” by Dan Tyminski. The ‘After’ music is “Darkness, Darkness” by Jesse Colin Young, performed here by Young as the vocalist of the Youngbloods.

(I take no side in the underlying question about the cell site; I simply point out how effective this video is in expressing its position.  -jlk)