Month: February 2012

PCIA says Sec. 6409 worth “hundreds of millions of dollars”

Posted on by Dr. Jonathan L. Kramer

Let me start by saying that I personally like and respect Mike Fitch, who is the President and Chief Executive Officer of the PCIA – The Wireless Infrastructure Association.  I’ve had the pleasure of sitting next to him several times on panels at wireless and government conferences. Mike is a smart guy, well spoken, and well spoken of.

You know, however, that with a preface like that I’m leading to something…

I’m disappointed that in announcing the passage of Section 6409 to the various state wireless associations, Mike said in part in his memo:

Significant victory for the industry

This legislation is an important win for our industry. It will save hundreds of millions of dollars as the industry deploys new technologies without wasteful review of existing wireless infrastructure sites. This will enable better network planning and build-out on existing and new sites. It will produce more capital investment and job growth to keep up with the dramatic increase in wireless use.

(Emphasis added.)

Wasteful review of existing wireless sites?

I suspect that significant segments of the public and state and local governments don’t agree that their reviews of wireless site collocation applications is “wasteful.”  Rather, it’s far more likely that the public and governments would says that the review is necessary to promote community aesthetics, and to deter the expansion of legal non-conforming uses.

It’s interesting that in Mike’s public press release posted to the PCIA website, he omitted the “wasteful” reference, when he said:

This legislation is a significant victory for our industry and for all consumers, businesses and public safety agencies that rely on wireless connectivity. . . It is a common sense measure that will significantly reduce regulatory burdens on infrastructure deployment—saving the industry hundreds of millions of dollars over many years. The ultimate beneficiaries are the nation’s wireless users, who will gain access to better, faster and more ubiquitous service as a result of the accelerated pace of deployment.

It’s all in the eyes of the beholder.  What is wasteful to one is protective to another.  For now, however, the industry has scored a major victory.

Local governments are already talking about how to work with and around the worst parts of Section 6409, and how to track the results of those 145 words.

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TriStar Investors (a.k.a. “David”) v. American Tower (a.k.a. “Goliath”)

Posted on by Dr. Jonathan L. Kramer

The Northern District of Texas is the home of a significant wireless law suit just filed, and one which will be of keen interest nationwide to both industry members, and to wireless site landlords.  Heck, this case will fascinate the likes of Unison, Wireless Capital Partners, Communications Capital Group, Landmark, and the others who (like TriStar) purchase cell site leases and take easements in the property under cell sites.

In this case, David (TriStar Investors) is suing Goliath (American Tower and its various operating companies) for:

Count 1: Violation of the Lanham Act, 15 U.S.C. 1125(a)
Count 2: Unfair Competition
Count 3: Business Disparagement
Count 4: Tortious Interference with Existing Contract
Count 5: Tortious Interference with Prospective Business Relations
Count 6: Breach of Contract

In Count 7, TriStar asks (under Texas law) for a permanent injunction commanding American Tower to refrain from doing three things.

Specifically it asks the court to permanently bar American Tower from:

(1) making false statements about its own services and commercial activities in negotiations with landowners;
(2) making false statements about TriStar’s services and commercial activities in negotiations with landowners; and
(3) making statements to landowners under contract with TriStar for purposes of inducing a breach of the TriStar contract.

As set out in the introduction to the case by TriStar:

This is a case about unfair competition and false advertising in the cell tower industry. American Tower, a massive corporation, has resorted to unfair and illegal tactics in negotiations with landowners for cell tower sites when faced with competition from a tiny competitor, TriStar. Rather than competing fairly and acquiring sites through superior offers, American Tower has systematically misinformed and deceived landowners to acquire sites under less favorable economic terms than those offered by TriStar, to the material detriment of TriStar and landowners nationwide.

(Complaint @ 1)

Some interesting assertions taken from TriStar’s complaint:

“[B]eginning in 1999, carriers began to outsource their towers by transferring control of the towers to a new market entity: the
tower company.” (Compliant @ 25)  “The first transaction in which a carrier transferred control of its towers occurred in 1999. Under the terms of that transaction, Bell Atlantic sold actual ownership of the tower steel to Crown Castle.” (Compliant @ 28)

“The tower companies, in exchange for their investment of capital to control a tower site, were the beneficiaries of two critical opportunities: (1) the lease-back payment from the carrier that had previously owned the tower, and (2) the option to lease additional space on the tower to other wireless carriers.” (Complaint @ 26)

“Today, there are more than 100,000 cell towers in the United States. Over half of those towers are controlled by three major public tower companies.” (Complaint @ 27)

“American Tower recently disclosed that approximately 86% of the communications sites in its portfolio are located on leased land. In order to establish or maintain their control of tower sites and generate revenue, American Tower must negotiate new ground leases, or renewals of current ground leases, with landowners on an individualized basis.” (Compliant @ 30)

Here’s a biggie: “Since the formation of the cell tower industry in the mid-1990s, the total cash flow produced by a typical cell tower has increased by more than $50,000 per year, while the total cash flow received by a typical landowner in the form of ground rent has increased by less than $10,000 per year. Whereas the typical landowner previously received approximately 40% of a cell tower location’s total cash flow, landowners now typically receive less than 15% from the tower companies. Over the course of the past 15 years, the total cash flow from a typical cell tower has increased by more than 400%, while the share of total cash flow that is typically received by a landowner has declined by more than 50%.” (Complaint @ 33)  “A typical cell tower operated by American Tower produces annual gross cash flow in excess of $80,000 for the company, whereas the landowner of such site typically receives less than $15,000.” (Compliant @ 34)

Fascinating, eh?

Now, about TriStar, formed in 2005:

“Most commonly through execution of an easement with the landowner, but occasionally via a fee purchase or successor lease, TriStar acquires the right to manage a communications site once the underlying ground lease with the existing tower company expires. The tower company enjoys the full benefit of its lease for the duration of the existing term without interference from TriStar. Upon lease expiration, TriStar takes over the management of the tower property from the tower company and endeavors to maximize benefit to the landowner.” (Complaint @ 39).  [See my comments below for more on this. -jlk]

“TriStar has acquired (or has fully executed agreements to acquire) control of over 600 tower locations throughout the continental United States.” (Complaint @ 41)

Why is American Tower ticked at TriStar?

“Since entering the industry, TriStar has acquired property rights underlying several hundred tower locations leased or subleased by American Tower. TriStar’s business model is to not renew leases with American Tower when they expire, but instead to operate each tower site for wireless communications purposes upon expiration of the respective lease (either by acquiring rights to the existing tower or constructing a replacement tower at the same location, which is typically permitted by local zoning regulations).” (Complaint @ 43)

If the snippets above have not made you want to read the entire complaint then I don’t know what will.  The full complaint is linked below.  You really should read it if you’re into wireless as anything more than a

As a wireless attorney working for site landlords (both private parties and governments), I’ll be particularly interested in following this case.  I have some tower site landlord clients that have been warned by American Tower that if they sell their sites to anyone by American Tower, they face the wrath of Goliath’s legal department.  That’s even if the landlord today sells an interest that does not commence until after American Tower’s interest completely terminates.

Apparently, American Tower believes that one of its rights today, is to have the future opportunity to enter into a new contract after the current one expires.  That’s a legal stretch somewhat equivalent to you telling your office landlord that if today he enters into a new lease with a different tenant for your office space, and that new lease does not commence until after the final expiration date of your lease, you can sue the landlord claiming …. ah …. ah ….

I wonder how long it will take for some enterprising attorney to try to form a class of site landlords who have been ‘dissuaded’ by American Tower, but that’s for a different post.

Read the complaint…Don’t wait for the movie: David v. Goliath

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Congress Gifts Wireless Industry with By-Right Collocation…Or Does It?

Posted on by Dr. Jonathan L. Kramer

On February 17, 2012, Congress passed the “Middle Class Tax Relief and Job Creation Act of 2012” (the “Act”) and sent it on to President Obama for his signature.  It seems likely that the President will sign the Act.

The California Wireless Association said about the Act in an email bulletin to its members (of which I am one): “In effect, Section 6409 exempts from local discretionary review collocations and modifications that do not substantially increase the size of the tower.”  Well, that’s one view, but it’s not complete, and it’s not that simple.

Let’s review….

Congress’s Election Year Gift to the Wireless Industry

As I discussed in a prior post, the Act contains the following significant gift to the wireless industry, grafted on to this Act from its former home in the stalled S.911 :

Sec. 6409. WIRELESS FACILITIES DEPLOYMENT

(a) FACILITY MODIFICATIONS.-

(1) IN GENERAL.-Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104-104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

(2) ELIGIBLE FACILITIES REQUEST.-For purposes this subsection, the term ”eligible facilities request” means any request for modification of an existing wireless tower or base station that involves –

(A) collocation of new transmission equipment;

(B) removal of transmission equipment; or

(C) replacement of transmission equipment.

(3) APPLICABILITY OF ENVIRONMENTAL LAWS.-noting in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.

Since it appears very likely that Sec. 6409 will become the law of the land, let’s take some time to dissect it for impact, defenses, and results.

What Types of Sites Are Protected by Sec. 6409?

Sec. 6409 does not on its face apply to any structures other than existing wireless towers.  The Act does not even define what constitutes a “wireless tower.”

Absent some local government code definition to the contrary, a building with an existing cell site on it is not a wireless tower; a park light standard with an existing wireless cell site is not a wireless tower; a church steeple with a cell site inside it is not a wireless tower; a billboard with an existing wireless site is not a wireless tower; a mono-cross is not a wireless tower.

In reality, relatively few physical structures should be called a “wireless tower” (especially by governments).

While it’s difficult to argue that monopoles are not wireless towers, if the monopole has a light standard on it located in a parking lot, and the monopole was put in to add wireless to a prior existing light standard, then it is straight-forward to argue that the monopole with the light standard is not a wireless tower.  It was a replacement for a light standard that was not a wireless tower, and the original use was preserved.  Yes, this is the wireless equivalent of “Who’s on First?! Who! Who?”

Let’s turn to the Act’s coverage of a “base station” (no pun intended).  The term “base station” is also not defined in the Act.  Since the term can mean different things depending on which side of the planning counter you normally stand, let’s take a closer look.

If the term “base station” means equipment cabinets, and a site presently has two cabinets, then doubling the number of cabinets to four would certainly be a substantial change in the physical dimensions of the base station.  If the existing “base station” is contained within a closed room or building, then doubling the number cabinets of the base station might not be a substantial change.  Context is important.

Since site configurations differ from site to site, carrier-to-carrier, and location-to-location, we can’t say in knee-jerk fashion whether an expansion of 5% of 50% of a wireless tower or base station is a substantial change in the physical dimensions for the purposes of the Act.  This will take a case-by-case reasoned analysis to reach a sound answer.

“Or” v. “And” Makes a Big Difference

Next, let’s look at how Sec. 6409 requires we evaluate a change in physical dimensions.

Sec. 6409(a)(1) does not say, ‘…a modification of an existing wireless tower and base station…’  Rather, it bifurcates the analysis when it says, in fact, a “…modification of an existing wireless tower or base station…” (Emphasis added).    This one word change unambiguously means that if a collocation proposal comes in for an existing wireless tower, then the government should conduct a two prong analysis.

The first prong is to determine whether the proposed expansion on the wireless tower will “substantially change the physical dimensions of [the existing] wireless tower.”  The second prong asks whether the proposed collocation will “substantially change the physical dimensions of the [existing] base station.”

If the answer to either prong is yes, then the collocation would fall outside of the rights and protections granted under Section 6409.  That said, then the government must still consider whether the project is one that should be permitted, conditioned, or barred under the local code governing wireless site installations.

An “Eligible Facilities Request” — Not As Obvious as it Might Seem

Turning to Section 6409(a)(2), now let’s look at what constitutes an “ELIGIBLE FACILITIES REQUEST.”

The term ‘eligible facilities request’ has three distinctly separate meanings, all of which are important to governments.  The first is that it means any request for modification of an existing wireless tower or base station that involves “collocation of new transmission equipment.”  This seems to be the main thrust of the Act, but it is interesting that the collocation of new transmission equipment does not mean the collocation of a new carrier or carriers on an existing tower.  There may be some governments that look at the plain text and say that this subsection (a)(2)(A) only applies to the existing occupant(s) on the real wireless tower who are, for themselves only, collocating new transmission equipment.

Subsection (a)(2)(B) makes it clear that an existing carrier on the wireless tower may by right remove its transmission equipment on the tower or at the base station.  Governments will like this section, since it will result in a reduction in the visual impact of a wireless site.

Subsection (a)(2)(C) makes it clear that an existing carrier on the wireless tower may by right replace its existing transmission equipment.  Again, size matters, if the replacement will be substantially larger or smaller compared to the existing transmission equipment.

NHPA & NEPA: Status Quo

I’m not going to spill too much e-ink over (a)(3).  The status quo is maintained and the as the FCC’s duties under the National Historic Preservation Act or the National Environmental Policy Act of 1969 are reaffirmed.

Recommendations to Governments

As a government wireless planner, you are about to have gleeful carrier reps–and even more gleeful carrier attorneys–telling you that Sec. 6409 makes your job soooo much easier now: Just say ‘yes’ to every collocation and your government won’t get sued.  They might even suggest that you tell the public that Congress is to blame for all this, rather than the carrier, right? Well, no, it’s not that easy for you, the carrier, or the public.

A careful, informed, rational project analysis is absolutely required to insure that governments are not granting collocations “by right” where no “by right” truly exists.

Start by looking at your wireless ordinance.  (You do have one, right?)  Does your ordinance contain a provision that actually defines a “wireless tower”  or a “tower” or a “base station”?  You are certainly going to want to review and likely tighten up those definitions to limit undesirable spillover.  For example, if you define wireless tower to mean every wireless site, then your definition will need to be changed pronto!

Use a detailed wireless application form (you should be using one, anyway).  Don’t blow your FCC Shot Clock deadlines because you didn’t use a detailed application, and you didn’t review the complete application at the time it hit your planning counter.  Consider requiring wireless applicants to make appointments to tender applications so you’ll block enough time to review project at the counter.  If the application is incomplete, make sure the applicant leaves with an incomplete letter at the time so that the shot clock doesn’t begin to run.

Sec. 6409 does not preempt a local government’s right (and some think a duty) to evaluate current and planned emissions for compliance with the FCC’s standards at 47 C.F.R. § 1.1307 et seq. and FCC OET Bulletin 65.  If the the by-right collocation project won’t comply with the FCC rules–and some don’t as proposed–then don’t be bullied into permitting a non-compliant project.

Especially consider legal non-confirming wireless towers and sites (a site that was legal under local law at the time it was constructed, but would not be permissible today under current local law…think “ugly monopole”).  The Act’s language would suggest that a government cannot deny a proposed collocation on a legal non-conforming site. Your government may well want to amend your local code right now to indicate that other than maintaining or replacing existing antennas with like sizes and shapes, any other material changes would be deemed to be ‘substantial’ for the purposes of collocation under the Act.  I’m sure that a lot of wireless industry attorneys will disagree, but most governments tolerate legal non-confirming uses only so long as they are not exacerbated or extended in term.

Speaking of term, some states (like California) permit local government to limit the length of wireless site permits to some term of years.  In California, the shortest term is normally 10 years, but modifying by expansion a legal non-confirming site would likely fall within the exception permitted in the Government Code (I helped write this section of the California Government Dode…call me…I’ll tell you more).

If you face granting a mandatory collocation on a wireless site that will term out, say, in 7 years,  then you’ll want to term-limit the collocation permit to expire at the same time as the underlying site permit.  This will be especially important in legal non-confirming settings.

I’m sure that some governments will use the enactment of Sec. 6409 to justify adopting a siting moratorium.  It may well be justified given the potentially drastic impacts the new law will have on a major sector of wireless siting.  We’ll have to wait and see.

Recommendations to the Industry

Congratulations industry, you’ve earned a well-funded victory at Congress!

Now, don’t overstate the scope of your new rights when dealing with governments.

Please don’t say that diesel generators to provide standby power are somehow “transmission equipment.”  It won’t fly, and you won’t get points for creativity, either.

Don’t make hollow threats of law suits, especially over technicalities such as trying to torture and graft favorable current meanings from ordinance terms created years ago for a substantially different purpose.  You’ll find enough legitimate bad-actor cases to develop case law that will rationally guide governments…and carriers…how to use the new law as a surgical tool where truly needed, rather than a blunt force instrument to inflict trauma simply for trauma’s sake.

Remember that governments may consider using your blunt force instrument threats to justify a siting moratorium for up to a year, or even longer.  Is that what you really want?

Work with governments to ease into this paradigm shift.  You’ll both be happier, even if the public won’t be.

Please (don’t) let the games begin.

___________________________

About the author:

Jonathan Kramer is a California-based radio frequency engineer, wireless siting advisor, and an attorney working primarily on behalf of local governments and wireless site landlords around the U.S.  Jonathan notes that the opinions expressed in this article are his own, and do not necessarily reflect those of any of his clients, friends or foes.  Kramer’s main website is TelecomLawFirm.com.




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As LightSquared Fades, What of Sprint?

Posted on by Dr. Jonathan L. Kramer

As you likely know, the NTIA’s Assistant Secretary for Communications and Information, Lawrence E. Strickling  gave LightSquared a big, fat, wet Valentine’s day kiss when he wrote to FCC Chairman Genachowski saying, “…we conclude that LightSquared’s proposed mobile broadband network will impact GPS services and that there is no practical way to mitigate the potential interference at this time.”

You can read the full letter, which goes downhill from the quote above, by clicking on this link:  NTIA Letter to FCC Regarding LightSquared: Feb. 14, 2012.

While everyone else is talking about LightSquared, I’m wondering about the impact of the likely LightSquared disappearance from the arena on Sprint.  Just last June, Sprint and LightSquared announced that they had entered into a 15-year agreement for Sprint to promote LightSquared as its 4G solution (hey, does anyone remember a company called ClearWire who was promoted by Sprint to be its 4G solution?  I’m just ask’n…).

Under the Sprint deal, LightSquared was to pay $9 billion dollars and give Sprint another $4.5 billion in credits for LTE and satellite services.  Shortly thereafter, Sprint kicked the Network Vision project into high speed.

Side note 1: Network Vision, for those of you who have not yet seen the vision, ahem, is Sprint’s project to replace its BTS cabinets that do one thing on one band with shiny new BTS cabinets that can be easily adapted to provide multiple services on multiple bands at the same time.   That’s actually a smart thing from an engineering perspective, but it sure looks like Sprint was betting on LightSquared’s payments to fund a good portion of Network Vision.

Side note 2: The Network Vision project is connected with Sprint’s recently-announced plan to shutter 30,000-ish of its current leases as the new multiband BTS cabinets go in.  Shuttering that many site leases should save Sprint something on the order of $400 million per year, and make cell site landlords wary of entering into new leases that don’t have early termination fees (huh? Your lease doesn’t?  Too bad; so sad.)

So, what’s next for Sprint?  Certainly it has wisely given up on WiMax as a real, long term 4G solution.  It looks like everyone agrees that LTE is the real answer, so the sinking of LightSquared’s ship is hardly likely to re-float ClearWire’s boat in Sprint’s eyes (or any other sets of eyes for that matter).  Since Sprint recently missed out on the “Buy Your Next Band From The Cable TV Guys” deals, its even farther down the spectrum rabbit hole.  Sprint needs frequencies, and it needs them last week.

This brings me full-circle back to an earlier blog post, from last September, when I mused on the idea that Sprint and T-Mobile would make a mighty fine look’n couple, and I even worked up a possible wedding announcement:

See: SprinT-Mobile?

T-Mobile has kept a nice dowry of cash (and better, spectrum) from when the DOJ forced AT&T to leave T-Mobile at the alter.  So like Sprint, T-Mobile has a pressing need to get married.  If not to each other, then to others, but marriages are on the horizon.

See you at the wedding(s).  I’ll be at the bar.

Jonathan

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Wireless Industry Trying Again to Force Unregulated Collocation

Posted on by Dr. Jonathan L. Kramer

You might think that the Payroll Tax Bill being hashed out in the Conference Committee would deal with, well, payroll taxes. Alas, you’d be wrong.

The wireless industry is trying very hard to insert language into the final version of the Bill that would strip state and local governments of the ability to control modifications to existing cell sites.

Specifically, the draft conference committee report contains the following provision:

SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.
(a) FACILITY MODIFICATIONS.—

(1) IN GENERAL.—Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

(2) ELIGIBLE FACILITIES REQUEST.—For [the] purposes of this subsection, the term “eligible facilities request” means any request for modification of an existing wireless tower or base station that involves—
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.

(3) APPLICABILITY OF ENVIRONMENTAL LAWS.—Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.

The language above is terribly flawed as it uses terms that are imprecise at best, and downright confusing at worst: “…substantially change the physical dimensions of such tower or base station…” Huh? This means that a collocation could substantially alter the aesthetics of an existing site outside of local control so long as the collocation does not substantially change to physical dimensions of the tower or or base station.

The proposed language would also remove the ability of a government to deny a collocation on a legal non-conforming site (a site that was legal under local law at the time it was constructed, but would not be permissible today under current local law). Ugly monopoles will get uglier with the addition of new antennas that do not “substantially change the physical dimensions of such tower” and that’s just the way it is.

Would anyone like to bet a law suit on what “substantially change” means?

If you believe that the language in the conference draft is offensive to local control of the rational deployment of wireless facilities designed to promote community aesthetics, now is the time to act. Really, now.

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Helos Over Westwood (Off Topic)

Posted on by Dr. Jonathan L. Kramer

Los Angeles is the home of many, many news helicopters.  This morning looking out of my office window, I saw five of them hovering over one of the LAPD choppers, which was, in turn, orbiting above a suspect on the roof of a home in Westwood.

In the photos, below, the new choppers are indicated with red arrows; and the LAPD chopper is at the end of the blue arrow.  The inset is from KTLA’s chopper coverage over the scene. Click on the image to enlarge it.

The suspect, who spent hours on top of several roofs in Westwood, was chased in what was reported to be stolen car. Apparently he likes his audience, since he repeated waived to the cameras and to the LAPD.

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Is Tower Building a Dirty Job?

Posted on by Dr. Jonathan L. Kramer

Apparently, tower building is a Dirty Job, according to Mike Rowe of Discovery Channel’s “Dirty Jobs.”   I happen to love the show, and I love towers, so what’s not to love about this?

The February 7th show has Mike joining the Great Plains Towers crew as they build a new stick.   No doubt this will be an interesting segment.

Here’s a question for you: Why are the tower bolts inserted upwards through the holes, with the nuts and washers on the top?  There is a VERY good reason for this, and you are taught the reason on the very first tower you assemble, or come to inspect.

Here’s another question from the clip, above: Why did Kevin Reski, the owner of Great Plains Towers  attach one of his safety belt hooks to a tower segment that had not yet secured by any bolts?  I really doubt there’s a very good reason for this.

Jonathan

PS: The tallest stick I’ve built was 251 feet AGL back in 1982.  It was for Storer Cable in Mission Viejo, California. That was tall enough for me, thank you very much.

PPS: Mike is well known for Discovery Channel’s Dirty Jobs and the Deadest Catch, and for the hysterical YouTube clips of Mike on QVC in the early 90’s (don’t drink while watching these unless you want to mop the floor after).  His personal web site is a fun pun: http://www.mikeroweworks.com.

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