FCC Shot Clock Affirmed by 5th Circuit

Yesterday, the 5th Circuit Court of Appeals denied the FCC Shot Clock appeal promoted by the City of Arlington, Texas and the City of San Antonio, Texas. For the foreseeable future, the Shot Clock will remain with us. Here is the decision: CITY OF ARLINGTON, TEXAS; CITY OF SAN ANTONIO, TEXAS v. FCC.

Although the Mayan Calendar predicts the end of the world on December 21st, 2012, it seems unlikely that the FCC Shot Clock will be the cause. It also seems unlikely that a petition for Certiorari will be favorably reviewed by the U.S. Supreme Court given the nature of the ruling, and the lack of a split among the various Circuits.

This appeal grew out of the FCC’s adoption of its wireless tower siting Shot Clock rule in 2009 (click here to read the FCC’s Shot Clock Declaratory Ruling) setting deadlines for governments to process to a decision wireless site applications “within a reasonable period of time” (see 47 U.S.C. § 332(c)(7)(B)(ii).

In its ruling, the FCC interpreted Congressional intent regarding § 332(c)(7)(B)(ii) to define the reasonable time as being 90 days for a collocation site, and 150 days for a new site and other types of applications. 47 U.S.C. § 332(c)(7)(B)(v) requires that when there is a failure to act on an application within the applicable time period, the aggrieved party (usually the carrier) should file a suit with a court of competent jurisdiction within 30 days and that “[t]he court shall hear and decide such action on an expedited basis.”

So, what does this mean for local governments? Likely not too much for now.

Most local governments, since the Commission’s adoption of the Ruling, have taken the order in stride and tried to comply. Most carriers have done the same thing. Most times, when the 90 or 150 day clock was about to run out, the carrier and government would enter into a tolling agreement (by mutual agreement to stop the Shot Clock where it was, so that everyone would have some breathing room to keep working on a project).

Why are tolling agreement needed? Even the Commission recognized the value of such agreements when it said,

We conclude that a rigid application of this cutoff to cases where the parties are working cooperatively toward a consensual resolution would be contrary to both the public interest and Congressional intent. Accordingly, we clarify that a “reasonable period of time” may be extended beyond 90 or 150 days by mutual consent of the personal wireless service provider and the State or local government, and that in such instances, the commencement of the 30-day period for filing suit will be tolled.

(FCC Shot Clock Order @ 49)

As someone who reviews and processes wireless site applications for many local governments, the most important clock is not 90 or 150 day clocks; it’s the first 30 day ‘application deemed complete’ clock.

The FCC said of this first 30 days,

[A] review period of 30 days gives State and local governments sufficient time for reviewing applications for completeness, while protecting applicants from a last minute decision that applications should be denied as incomplete. Accordingly, we conclude that the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days only if that State or local government notifies the applicant within the first 30 days that its application is incomplete.

(FCC Shot Clock Order @ 53)

Some states, including California, already provide for an initial 30 day review period for application completeness (in California see Gov. Code § 65943). Unlike the California law, however, which ‘resets’ the clock back to zero if an application is returned incomplete within the first 30 days, the FCC shot clock simply stops where it is at the time the incomplete notice is issued. If the local government takes 25 days to review a project for completeness, and returns the application as incomplete on that day, it only has 5 more days to review the project when resubmitted.

Because the FCC first 30 day clock is the toughest to deal with, local governments will be well-served to create carefully-crafted and very detailed applications that make incomplete submissions easy to detect. For an example of a wireless application form that is both detailed and highly structured, take a look at the one I’ve maintained for nearly a decade and which is used in one form or another by various jurisdictions around the country: CLICK HERE.


I believe that local governments will be best served by a combination of a carefully-crafted wireless siting application facilitating an easy completeness check, coupled with the requirement that wireless site applications only be filed by appointment where legally permissible.

Taking in and reviewing a complex wireless siting project and the underlying thorough siting application and data can take an hour or more.

By requiring appointments, a government planner can allocate sufficient time to take in and review the application at the time it hits the counter. Any facial omissions or errors can be identified during the intake, and the planner can immediately log in the project and simultaneously issue the applicant with an incomplete letter at the same time. This approach will blunt the worst impacts of the 30-day clock by never allowing it to start for facially incomplete or incorrect applications.

♫ ‘A siting we shall go; a siting we shall go…’ ♫


Crown Castle Buys Ground Lease-Related Assets

(Reprinted from the AGL Bulletin of January 17, 2012.  You really should subscribe.)

Crown Castle International has acquired a portfolio of ground lease-related assets for $180 million in cash and the assumption of approximately $320 million of debt in a deal with Wireless Capital Partners (WCP).

“While it may appear that they [Crown Castle] are paying a ransom today to [acquire] these 2,300 leases, over the long term this portfolio purchase will bring greater stability to CCI’s site costs,” Wireless site landlord attorney Jonathan Kramer, told AGL Bulletin. “Over the near term, I expect to see more package purchases from the aggregators by the major tower companies, which are morphing into long-term real estate investment trusts.”

The portfolio includes approximately 2,300 ground lease-related assets, including more than 150 related to Crown Castle towers. The assets being acquired generate annual cash flow of approximately $42 million, with 80 percent generated from the big four carriers. The acquisition is expected to close in the first quarter of 2012.

“Given the deeply negative relationship between the aggregators and the tower companies, I wonder whether this deal will bar WCP from building a new portfolio of other Crown Castle sites and doing it to Crown Castle one more time,” Kramer said.



DAS Beware of Bright House’s Bright Idea

Bright House, a major cable TV “multiple system operator” (MSO) is joining other cable operators by deploying 2,000 WiFi nodes in its Florida systems.   Following the usual MSO model, Bright House is offering its service for fee to its subscribers, and on a paid basis to others.   It seems likely that BelAir Networks will be the equipment vendor of choice.

Not so clear is whether Bright House will allow its WiFi customers to roam on the WiFi systems being built by Cablevision Systems, Time Warner Cable and Comcast.

Not only are Cablevision Systems, Time Warner Cable and Comcast all building WiFI networks in high-density areas of their system footprints, but they also have an agreement in place to allow their customers to roam on any of the three WiFi networks.

With CableLabs already working on a common standard for cable system WiFi roaming, its only a matter of (a little) time before the national roll-out of cable’s WiFi, which will then set the stage for cable’s provision of 3G/4G/xG services from these same nodes.

As I’ve already discussed in this bog, the entire DAS sector will be marginalized (or worse)  by the national deployment of cable-based wireless services, starting with WiFI and moving to xG contract nodes for wireless carriers.

Bright House’s deployment is just another step along the path of DAS marginalization.



Text the U.S.A. From (the Backseat of) Your Chevrolet

Not only can OnStar (the in-vehicle mobile phone system) unlock your car doors, tell you where to go, help you deliver a baby, and propose to your girlfriend, soon, OnStar will also pull up your favorite movies as well as text your mother, all at the same time.

OnStar is showing off its new navigation and entertainment system called CUE, which will consist of a large touch screen in the center of the dash, in the backseat, or maybe even embedded as a heads-up display in the windshield (no, not really – as far as I know the technology is only available in the movies).

CUE is being positioned to work much like an iPhone or any other touch screen SmartPhone.  In fact, OnStar has plans to open up its application programming interface (API) software so that third-party developers can create new apps for CUE.  (When visiting the ‘CUE Store’ does one need to actually drive there?)  In the same vein, CUE will be built on a software upgradeable platform that will use soft keys on-screen to access apps, movies, maps, your cup of java (well, at least order it, anyway).

How great would it be to turn your car into an iPhone?  Let’s not worry about drivers playing Angry Birds on their way to work, for now anyway.

As all early iPhone adopters have learned, a great device needs a fast and reliable network (thanks to AT&T for that often frustrating lesson). OnStar is NOT going down that same road.

In a vote of confidence to both its speed and overage, OnStar is heading to a deal with Verizon to use Verizon’s shiny new, if still not completely reliable, LTE network (see http://gigaom.com/broadband/verizon-explains-its-string-of-lte-outages/).

The speed of Verizon’s LTE network will be important for the navigation functionality of CUE to deliver real time high resolution maps that will make the DVD driven and stand alone navigation systems obsolete.

Expect CUE to also provide destination photos, and linked web content.  Going to a restaurant? See their menu on the way, and order your appetizers before you arrive.

Coming soon to a new Cadillac near you!

In a couple of years, it’ll migrate down to your Chevrolet.


Buddy, can you spare $9B?

Please feed the T-Mobile Kitty. (Photo illustration by Jonathan Kramer)

So T-Mobile, recently left at the alter by AT&T, is now looking for $9B to build out a LTE network that can compete with AT&T.

T-Mobile has a great start towards its goal when you consider that AT&T gave it $4B as a parting gift.  If you have some loose change or small bills, please drop it in Carly’s cup.  Heck, all she needs is another $5B.  Easy!

$9B’s a lot of investment money simply to split the market even more than it is, today.  It’s also interesting that T-Mobile seems determined to join the rest of the world by going to 4G via LTE rather than via its current industry-isolating path of HPSA+ (also known as “it’s 4G if we say it’s 4G”).

I continue to believe that T-Mobile will either join forces with Sprint (can you say “SprinT-Mobile”?) or T-Mobile will acquire one or several smaller regional carriers.  How about “Hello…Hello…Hello” for example.  A dark horse: Maybe Deutsche Telekom, T-Mobile’s German parent will sell off its entire worldwide wireless network to some small country…or maybe to Microsoft.

Only time…and money…will tell.


The Spectrum Dilemma: What’s a Carrier to do?

AT&T’s intended takeover of T-Mobile was supposed to give AT&T access and control of badly needed spectrum. The demands on spectrum are growing faster than Apple can sell iPhones. Unfortunately, while AT&T was busy trying to consume the 4th largest wireless provider in the United States and fighting with the Department of Justice, Verizon was quietly moving to buy up the undeveloped spectrum held by the major cable providers (a completely different bedtime story for the DOJ to dream about…as they apparently are starting to do).

The result? Verizon’s spectrum purchases have gobbled the available spectrum that might have otherwise been available for an AT&T purchase.

T-Mobile, the long-suffering ‘we don’t have enough spectrum’ player, also missed out on the opportunity to buy spectrum from the cable providers.

Both AT&T and T-Mobile are desperate for spectrum, so what are they to do?

The DOJ, as we have all learned, has a big problem when the number 2 and number 4 providers attempt to merge (something having to do with a little thing called Antitrust).

Might the next baby step for AT&T be to acquire MetroPCS? Maybe that’s T-Mobile’s next bid, too.

It makes sense for both AT&T and T-Mobile to be interested in acquiring MetroPCS because it has a nationwide PCS footprint that is only growing with its all-you-can-eat, no contract approach.

Or maybe the next step is more of a LEAP (Wireless, that is, which has been rumored to be an acquisition target).

Two things are for sure: First, AT&T needs more paired frequencies, and they need them yesterday Second, T-Mobile either has to mate with one or more smaller regional carriers, or try mating with Sprint. AT&T’s parting gift to T-Mobile of $4B for the failed marriage would make a lovely trousseau.


New Photos in Cell Tower Gallery

Last month I traveled to Santa Fe and Albuquerque, New Mexico to participate on a wireless law panel and to visit with friends.  While there I had a chance to take a series of new site photos in Santa Fe, and to add to the Twisted Tower photo collection.

Here are a few examples that are available for full size viewing in the celltowersites.com/gallery/

Santa Fe High School Light Standard Site
Two for Fore :: Santa Fe Country Club


The Twisted Tower of Albuquerque

With over 1,400 cell site and cell tower photos, our photo gallery is perhaps the finest online collection available anywhere.  To visit the gallery, just CLICK HERE.