FCC Chair Tom Wheeler’s Keynote At NATOA National

natoafccchair.20141001(Updated 5:29 p.m. PDT to include the prepared remarks of the Chairman.)

FCC Chairman Tom Wheeler presented the keynote speech on October 1, 2014 at the National Association of Telecommunications Officers and Advisors (NATOA.ORG) Annual Conference in St. Paul, Minnesota.

The running time of the lecture is just under 30 minutes, and this is a ‘must listen’ lecture about issues important to the Commission, the telecom industry, and governments.

For those of you who are interested in the pending FCC Report and Order on Broadband Deployment (the ‘6409(a)’ NPRM) start at 20:35.  That portion is about 1 minute long, but contains very interesting clues as to how the Commission will address the comments received from the industry and governments and frame the pending rules.

Chairman Wheeler’s prepared comments are presented below the audio link.

Jonathan Kramer


 (From: http://www.fcc.gov/document/remarks-fcc-chairman-tom-wheeler-natoa-annual-conference)

Remarks of FCC Chairman Tom Wheeler

National Association of Telecommunications Officers and Advisors

Annual Conference

October 1, 2014


Thank you, Tony Perez, for that introduction. I join in congratulating the winners of NATOA’s Community Broadband Awards.

It’s great to be at the NATOA meeting here in Minnesota. Perhaps that explains why as I look out across this assemblage, all the women are strong, the men are good-looking, and the policy proposals above average.

A native Minnesotan, in fact, provides us with the intellectual foundation for our discussion today. It was the son of Hibbing, Minnesota, Bob Dylan who wrote, “You better start swimming or you’ll sink like a stone, for the times they are a-changing.”

That is the challenge we all face. There is no doubt that high-speed broadband – wired and wireless – is a-changing everything. Those who embrace these changes will help write the future. Those who don’t will…well…sink like a stone.

NATOA and the FCC are swimming to the common goal of making sure that communities across America – large and small – have access to robust broadband networks that deliver the benefits of broadband connectivity to all citizens.

But you may have noticed that not everyone is swimming alongside that effort. There are those who seek to block the competitive forces that can produce faster, cheaper, better broadband; those who make it difficult to build out the infrastructure necessary for the broadband future; and those with which both you and we have to contend that would use changes in technology as an excuse to sidestep the responsibilities network operators have always had to their users.

Today, I would like to visit about our responsibility to overcome this resistance and ensure that our nation has the networks necessary for the jobs, economic growth, and quality of life that will determine our nation’s place in the 21st century. Yes, that is a dramatic statement; yes, it is that important; and, yes, I know it is easier to say than to do.

You, in your positions in your communities, and my colleagues and I, in our positions at the FCC, have responsibilities, not just to the consumers and networks of today, but also to the consumers and networks of tomorrow. Here is the reality confronting us:

  • We need faster networks in more places. I don’t know about you, but I’m tired of seeing the charts of where the U.S. ranks in comparison to the broadband speeds of other nations. Table stakes for the 21st century is 25 Mbps, and winning the game means that all consumers can get at least 100 Mbps – and more.
  • Competition is the best way to achieve those goals. Unfortunately, today there is an inverse relationship between competition and throughput. Three-quarters of American homes have no competitive choice at 25 Mbps. That includes almost 20 percent who have no option at all at those speeds!
  • Wireless is an increasingly critical broadband pathway of the future. The 21st century will be defined by the networks that marry the ever-increasing computing power of Moore’s Law with the invisible delivery of wireless spectrum. Our generation has been self-congratulatory about the connection of people – seven billion wireless subscriptions in a world of seven billion people is impressive – but you and we must plan on connecting 50 billion inanimate devices made smart by Moore’s Law.
  • Openness is the key to networks delivering on their possibilities. Blocking, discriminating, or degrading service for economic gain is contrary to the promise of broadband networks. Yet we have no protections in place to assure that kind of openness. We must have rules that will establish that an open Internet is the sine qua non of broadband.

A minute ago I spoke of the responsibilities of networks. For the better part of a century, there has been a set of principles that has defined the relationship between those who build and operate networks and those who use them. I call this the “Network Compact” and our goal as regulators and policy makers is to assure that these principles continue to define that relationship into the future. These principles include:

  • Access – both to networks and on networks,
  • Interconnection – by definition a network is a series of connections; in the broadband world, the Internet isn’t a thing, but a connected collection of networks,
  • Consumer protection – technology has pushed the laws of physics, but nothing has changed the laws of human nature or economics, and consumers must be protected from exploitation,
  • Public safety – we’ll talk more about this in a minute, but it must be the underlying deliverable of all networks, and
  • National security – in a world in which networks are now attack vectors, we must have secure and safe connectivity.

There are those who argue that the move from analog networks to IP networks changes these principles. They are wrong. The form these responsibilities take may change in an IP world, but the principles do not – and should never – go away.

As we transition to an all-IP world, the challenge confronting those of us in this room is how do we preserve these values that we have come to expect from our networks, while seizing the opportunities that our new networks promise? So let’s address these issues head-on – starting with competition.

Competition works, and how we behave determines whether there will be competition. The existence of four national wireless carriers, for instance, is an important national priority and we worked to protect that reality. Similarly, there cannot be effective competition in wireless without new spectrum and without assuring that the most advantageous low-band spectrum is available to all competitors. We are doing both of those as well.

The advantages of competition are so obvious and ingrained in the American psyche that many local communities have stepped up to facilitate it where the private sector has not. Communities are listening to the needs of their citizens and enterprises, engaging community stakeholders, and focusing on delivering competitive broadband services to respond to those needs.  As you know, two communities – Wilson, NC and Chattanooga, TN – have petitioned the FCC to preempt the laws enacted by state legislatures that prohibit them from expanding their community-owned broadband networks. There are currently laws in 19 states that impose restrictions of one kind of another on such local decision-making.

We will make our decision on those petitions on the record and on the merits. I am not going to comment on them any further.

However, I do encourage you to consider how local choice and competition can increase the broadband opportunities for your citizens. I love the story of Lafayette, Louisiana where the local incumbent fought the city’s fiber network tooth and nail, bringing multiple court challenges and triggering a local referendum on the project.  Thankfully, none of the challenges managed to prevent deployment – sixty-two percent of voters approved of the network in the referendum, and the Louisiana Supreme Court unanimously sided with the city – but they did delay deployment almost three years.  When the network was finally built, the community experienced the benefits of competition, as the local cable operator decided to upgrade its network. Local choice and competition are about as American as you can get.

Those American principles can play an important and essential role in assuring America’s future.

Here’s where you and other local officials become critically important. If the infrastructure necessary to build out both wired and wireless broadband networks doesn’t receive the prioritization that it warrants as a major national undertaking, then all the efforts to achieve faster, cheaper, better broadband service that will enhance our nation’s competitiveness, create quality jobs for our fellow citizens, and introduce services that will redefine both our commerce and our culture will be for naught.

I know this is often a zoning matter in which you are as much an observer as we are. In those instances where some of you may have a role, however, I encourage you to be pro-active. In those instances where it is others who have the authority, I urge you to stand up for your telecommunications responsibilities. I understand the very real and very strong Not-In-My-Backyard sentiments.  Everyone wants cellphone service but no one wants cellphone antennas in their neighborhood.  Everyone wants access to state-of-the-art transmission service, but no one wants the neighborhood streets dug up.  It reminds me of another folk song: “Everyone wants to go to heaven, but nobody wants to die.”

However, we’re talking about a national priority; about the maintenance of economic leadership; about America’s continuing to be the home of innovation. We must find ways to enable the extension and expansion of broadband infrastructure.  Local officials with permitting authority have a special obligation to both their own communities and to the larger society. It is simply impossible to have the connectivity our nation requires without the necessary infrastructure. While there is an understandable desire to engage in cognitive dissonance of wanting connectivity but not its consequences, as policy makers we must resist within reason such myopia.

In that regard, we must build on and expand the creative thinking that has been the hallmark of the good work many of you have done to facilitate advanced broadband builds around the country.  It’s great that NATOA has developed best practices on tower siting and is updating those practices. And as I understand it, there is also a guide on rights of way issues, but it’s 12 years old. Things have changed a bit in the last dozen years. I encourage you to update your rights of way guide.

You have the ability to develop national best practices that embrace strategies that have been shown to work in today’s technological and economic environments – strategies that embrace new technology and new ideas to facilitate the timely deployment of wired and wireless broadband. There is a reason Google Fiber developed a “City Checklist” to aid in determining where to invest in gigabit fiber. It contains simple things, like timely and accurate information about and access to poles and conduit. These low-cost steps are relevant to all broadband providers; we must bring those insights to all localities.

At the FCC, we will use our authority to attack the broadband deployment challenge. We will work with you, so that national best practices are included in our Agenda for Broadband Competition…the ABCs of consumer choice in the 21st century. We will also move on our own authority. Last Friday I proposed to my colleagues a new set of federal policies on the siting of wireless facilities. This proposal will take concrete steps to immediately and substantially ease the burdens associated with deploying wireless equipment – particularly for collocations and deployments of small-cell systems that can be installed unobtrusively on utility poles, buildings, and other existing structures. At the same time, my proposal preserves the front-line authority of local and Tribal governments to determine which structures are appropriate for wireless deployments, as well as authority to enforce building codes, electrical codes, laws related to health and safety, and to require companies to use camouflage or concealment designs. The Commission will consider this item at our next open meeting on October 17.

There is another component of our broadband responsibilities, and that is video programming. We’ve been hearing a lot lately that access to video is necessary for broadband deployment because consumers increasingly watch video online and that translates into more demand for video-quality broadband. So if we can make it easier for video choices to come to communities, we should be able to incent more broadband competition as a result.

Broadband becomes more economically viable, we are told, when it is bundled with video services. In a perverse way, then, how localities handle video competition can determine whether they will have broadband competition.

I want to close my remarks by emphasizing one other place we must work together – public safety.

Robust, accessible 911 service is central to our shared public safety missions.

The transition to all-IP communications raises new challenges for 911.

We are used to thinking about 911 outages as a result of acts of nature: a hurricane, a tornado, vast flooding.

But there is a new threat. The emerging Next Generation 911 system is more complex than the legacy 911 system and relies more extensively on infrastructure, resources, and relationships that are multistate or national in scope. It is supported by a larger number of service providers, including new entrants that are offering new, niche functionalities.

Innovation is good, and we want NG 911 to support new forms of emergency communications.

But the creation of new, complex systems where no one is responsible, and where the system as a whole lacks reliability and resiliency is not acceptable.

The threat is real….and growing.

In April, citizens in seven states lost access to 911 for six hours…six hours!  More than 5,600 911 calls did not get through because of a software glitch in an outsourced database!

This August, there was a 911 outage in one of the nationwide wireless networks, and there was an outage in Vermont that knocked out 911 service statewide for nearly an hour.

The fact that these outages occurred, and the common issues they raise, are evidence of the challenge we face, and suggest that we are at risk of experiencing far worse failures if we don’t take action now.

We recognize that states and local governments also have long-standing and significant responsibility for 911 service within their jurisdictions.  We believe the best approach is a partnership between the FCC and state and local authorities to ensure that there are no gaps in the reliability of the entire NG911 system. The FCC’s staff has worked closely with state and local officials to investigate these outages, and, at our open meeting later this month, will be presenting the findings of this investigation, as well as recommendations for concrete steps to promote end-to-end reliability and accountability of the 911 system.

The critical point is this: neither we at the federal level nor you at the state and local level have the ability to ensure end-to-end 911 reliability on our own – we must work together.

We must work together, not just on 911, but on all the topics I’ve discussed today.

When competitive broadband options don’t exist, let’s work together to create an environment that encourages investment to switch-on America’s competitive genius.

When there is no broadband availability at all, let’s work together to get infrastructure deployed by any and all entities willing to step up to meet the challenge; and

When providers begin to retire legacy networks for newer technologies let’s work together to make sure that the expectations of consumers and businesses continue to be met, including access to 911.

For the times they are a’changing. Let’s work together to embrace the new opportunities and build a better tomorrow.

Thank you.


FCC State & Local Government Wireless NPRM Discussion Audio

The FCC’s State and Local Government webinar today touched on the pending Wireless NPRM.  I recorded the audio of the lecture and have provided it via the live link below.  The running time is about 19 minutes and 11 seconds.

If you’d like to download the MP3 audio (about 3 MB) you can right click below and save the file to your local computer.



Which Way L.A. Explores Cell Tower Siting Issues

whichwaylaWarren Olney, host of Which Way L.A. on KCRW (NPR in Southern California) devoted a segment of today’s program to wireless tower siting.

Titled, “The No Longer Hidden Cost of Wireless Technology” Warren focus on the looming debate about more cell sites closer to their customers.

Richard Stein, a Los Angeles resident with an existing AT&T wireless site on a utility pole in front of his home was interviewed about AT&T’s plans to quadruple the size of the antennas, and to place a controlled environment vault (“CEV”) in the right-of-way near the pole.

AT&T declined to be interviewed for the show regarding its cell site in front of Mr. Stein’s home.

Warren spoke with me about technology and legal issues related to wireless siting, and also about the pending FCC Notice of Proposed Rulemaking that could reshape the entire landscape regarding cell siting regulations in the U.S. We also covered Section 6409(a).

Robert Jystad, the incoming president of the California Wireless Association spoke on why carriers need to bring their services closer to homes and end-users. He gave the facts and figures about the wireless society. He also alluded to, but did not outright say that Mr. Stein’s opposition to AT&T’s plan was for a reason other than aesthetics, which Mr. Stein rejected. As a side note, you might be surprised to learn that I was the one that recommended to the show’s producer, Evan George that Mr. Jystad be interviewed for the segment. It seemed important to make sure an industry voice had the opportunity to weigh in to the discussion.

The 16 minute segment is now on line. You may listen to the audio segment via the show page: http://www.kcrw.com/news/programs/ww/ww131029the_no_longer_hidden

This was a fun experience, and one that I hope will not be my last.





Rarer than the Loch Ness Monster: the Mono-Scaffold Wireless Tower!

The elusive and rarely photographed Mono-Scaffold.
The elusive and never-before photographed Mono-Scaffold wireless tower.  Click to enlarge.

It is rare that I have the privilege of capturing a never-before documented wireless tower design.  Yet fate has chosen to grace me by allowing me to find, in the wild, this most elusive of wireless tower designs…

…the Mono-Scaffold!

While hereto-now only hushed rumors of this rarest of tower designs have been uttered in the strictest of confidences between contract wireless engineers working for carriers, I am able to confirm with irrefutable evidence forthe international scientific and lay communities the first documented, photographed mono-scaffold site.

This mono-scaffold site, located in Malibu California on Pacific Coast Highway, forever quiets the popular speculation of the existence of this fabled design.  It is true.  It exists.

Having now proven the existence of a Mon0-Scaffold, I must now turn my attention to the most important follow-on query:

Is a Mono-Scaffold subject to Section 6409(a) of The Middle Class Tax Relief and Job Creation Act of 2012?

A lessor question, but important in its own right:

Is a Mono-Scaffold is subject to EIA/TIA-222?

As is most often the case, one answer provokes several new questions.  The expansion of knowledge continues.

You are lucky to live in the time during which the existence of the fabled Mono-Scaffold was proven as a fact.

If you wish to field-verify my findings, I encourage you to navigate…quickly…to N34.0394 W118.6717.

I urge you to hurry.  There is no telling how long the Mono-Scaffold will remain in this one location.



AT&T’s “Uniform Wireless Communications Infrasturcture Act” in Missouri

Missouri Coat of Arms
Missouri Coat of Arms

Salus AT&T suprema lex esto

The latest attempt by the wireless industry, and specifically AT&T, to bypass any rational zoning process, is in Missouri.

House Bill 331,  “[t]o repeal sections 67.1830, 67.1836, 67.1838, 67.1842, 392.415, 392.420, and 392.461, RSMo, and to enact in lieu thereof twenty-two new sections relating to telecommunications” is a massage land grab the likes of which have not been seen elsewhere.

The Bill, which flew through the state legislature and is now sitting on Governor Nixon’s desk, would effective deregulate wireless communications from any effective local review or public participation.

Yesterday (Sunday, June 16), the Kansas City Star newspaper’s editorial urged Governor Nixon to veto the bill, saying “As much as Missouri needs to encourage a robust technology infrastructure, the placement of towers shouldn’t run roughshod over the wishes of communities or property owners. Yet that’s exactly what a bill on Gov. Jay Nixon’s desk enables cellphone service providers to do.” “There is no evidence that cities and counties in Missouri were making it unduly difficult to erect towers. House Bill 331 is simply a proactive move by corporate interests to have their way.”  Read the entire editorial here.

The following is the legislature’s analysis of the bill as sent on to Governor Nixon.


This bill changes the laws regarding infrastructure facilities deployment.


The bill allows public utilities to have permit denials by political subdivisions heard in court if they believe a violation of existing law has occurred. Courts must act in an expedited manner by moving disputes over public right of way under Sections 67.1830 to 67.1848, RSMo, to the front of the docket. If a political subdivision does not act on a permit application within 31 days, then the application will be deemed approved. If a public utility has legally been granted access to a political subdivision’s right of way since August 28, 2001, they are not required to obtain a new permit.


The bill establishes the Uniform Wireless Communications Infrastructure Deployment Act to encourage and streamline the deployment of broadband facilities and to help ensure that robust wireless communication services are available throughout Missouri. The bill:

(1)    Prohibits an authority as specified in the bill with jurisdiction over wireless communications infrastructure from taking specified actions that could result in a non-uniform market for wireless service in Missouri. The prohibition does not include state courts having jurisdiction over land use, planning, or zoning decisions made by an authority. The prohibitions include:

(a)    Requiring an applicant to submit information about or evaluate an applicant’s business decisions with respect to its designed service, customer demand for service, or quality of its service to or from a particular area or site;

(b)    Evaluating an application based on the availability of other potential locations for the placement of wireless support structures or wireless facilities including, without limitation, the option to add wireless infrastructure to existing facilities instead of constructing a new wireless support structure or for substantial modifications of a support structure or vice versa;

(c)    Dictating the type of wireless facilities, infrastructure, or technology to be used by the applicant by requiring an applicant to construct a distributed antenna system in lieu of constructing a new wireless support structure;

(d)    Requiring the removal of existing wireless support structures or wireless facilities, wherever located, as a condition for approval of an application;

(e)    Imposing environmental testing, sampling, or monitoring requirements or other compliance measures for radio frequency emissions on wireless facilities that are categorically excluded under the Federal Communications Commission’s rules for radio frequency emissions under 47 CFR 1.1307(b)(1) or other applicable federal law;

(f)    Establishing or enforcing regulations or procedures for RF signal strength or the adequacy of service quality;

(g)    Rejecting an application in conformance with 47 U.S.C. Section 332(c)(7)(b)(4), in whole or in part, based on perceived or alleged environmental effects of radio frequency emissions;

(h)    Imposing any restrictions with respect to objects in navigable airspace that are greater than or in conflict with the restrictions imposed by the Federal Aviation Administration;

(i)    Prohibiting the placement of emergency power systems that comply with federal and state environmental requirements;

(j)    Charging an application fee, consulting fee, or other fee associated with the submission, review, processing, and approval of an application that is not required for similar types of commercial development within the authority’s jurisdiction.   Fees imposed by an authority for or directly by a third-party entity providing review or technical consultation to the authority must be based on actual, direct, and reasonable administrative costs incurred for the review, processing, and approval of an application. In no case should total charges and fees exceed $500 for a collocation application or $1,500 for an application for a new wireless support structure or for a substantial modification of a wireless support structure. An entity with jurisdiction or any third-party entity cannot include within its charges any travel expenses incurred in a third-party’s review of an application, and in no event can an applicant be required to pay or reimburse an authority for consultation or other third-party fees based on a contingency or result-based arrangement;

(k)    Imposing surety requirements, including bonds, escrow

deposits, letters of credit, or any other type of financial surety, to ensure that abandoned or unused facilities can be removed unless the authority imposes similar requirements on other permits for other types of commercial development or land uses;

(l)    Conditioning the approval of an application on the applicant’s agreement to provide space on or near the wireless support structure for authority or local governmental services at less than the market rate for space or to provide other services via the structure or facilities at less than the market rate for the services;

(m)    Limiting the duration of the approval of an application;

(n)    Discriminating or creating a preference on the basis of the ownership, including ownership by the authority, of any property, structure, or tower when establishing rules or procedures for siting wireless facilities or for evaluating applications;

(o)    Imposing any requirements or obligations regarding the presentation or appearance of facilities including, but not limited to, those relating to the kind or type of materials used and those relating to arranging, screening, or landscaping of facilities if the requirements are unreasonable;

(p)    Imposing any requirements that an applicant purchase, subscribe to, use, or employ facilities, networks, or services owned, provided, or operated by an authority, in whole or in part, or by any entity in which an authority has a competitive, economic, financial, governance, or other interest;

(q)    Conditioning the approval of an application on, or otherwise requiring, the applicant’s agreement to indemnify or insure the authority in connection with the authority’s exercise of its police power-based regulations; or

(r)    Conditioning or requiring the approval of an application based on the applicant’s agreement to permit any wireless facilities provided or operated, in whole or in part, by an authority or by any entity in which an authority has a competitive, economic, financial, governance, or other interest, to be placed at or connected to the applicant’s wireless support structure;

(2)    Allows authorities to continue to exercise zoning, land use, planning, and permitting authority within their territorial boundaries with regard to the siting of new wireless support structures, requirements, and with regard to applications for substantial modifications of wireless support structures.  The authority must review, within 120 days of receiving an application to construct a new wireless support structure or within the additional time as may be mutually agreed to by an applicant and an authority, the application as to its conformity with applicable local zoning regulations and advise the applicant in writing of its final decision to approve or disapprove the application. Applications will include a copy of a lease or other agreement from the property owner evidencing a right to pursue the application. The authority must, within 120 days of receiving an application for a substantial modification of wireless support structures, review the application as to its conformity with applicable local zoning regulations and advise the applicant in writing of its final decision to approve or deny the application. Procedures for extending these deadlines and fixing deficiencies are also specified in the bill. A party aggrieved by the final action of an authority or its inaction may bring an action for review in any court of competent jurisdiction;

(3)    Requires an application for additions to or replacement of wireless facilities to be reviewed for compliance with applicable building permit requirements. Applications will include a copy of a lease or letter or agreement from the property owner evidencing the applicant’s right to pursue the application.   The authority must, within 90 days, review the application as to its conformity with applicable building permit requirements and consistency with the provisions of the act and advise the applicant in writing of its final decision to approve or deny the application.   However, procedures for expediting or extending the deadline and for fixing deficiencies are also specified in the bill. With regard to collocation applications the overall deadline is 45 days with procedures for notification and remedy of deficiencies specified in the bill;

(4)    Specifies that the provisions of the bill do not authorize an authority, except when acting solely in its capacity as a utility, to mandate, require, or regulate the placement, modification, or attachments of any new wireless facility on new, existing, or replacement poles owned or operated by a utility or expand the power of an authority to regulate any utility;

(5)    Prohibits an authority from instituting a moratorium on the permitting, construction, or issuance of approval of new wireless support structures, substantial modifications of wireless support structures, or attachments to existing facilities of wireless communication infrastructure if the moratorium exceeds six months and if no good cause is shown. A moratorium must not affect pending applications;

(6)    Prohibits an authority from charging a wireless service provider or wireless infrastructure provider any rental, license, or other fee to locate a wireless support structure on an authority’s property in excess of the current market rates for rental or use of similarly situated property. An authority may not offer a lease or contract to use public lands to locate a wireless support structure on an authority’s property that is less than 15 years in duration. A process for the resolution of any disputes over fair market value lease payments using appraisers appointed by both parties is also specified in the bill; and

(7)    Prohibits applicants for wireless facility permits from having the power of eminent domain or the right to compel any private or public property owner, the Department of Conservation, or the Department of Natural Resources to lease or sell property or locate wireless facilities on existing structures.


The bill establishes procedures for utilities regulated by the Missouri Public Service Commission or rural electric cooperatives, municipal utilities, and specified nonprofit electrical corporations in third classification counties, to construct a facility as specified in the bill through a railroad right-of-way.

The bill specifies that a utility must be deemed to have authorization to commence a crossing activity 30 days from the mailing of the notice, completing the engineering specifications, and payment of the fee, absent a claim of special circumstances. The utility may propose an amended crossing proposal if special circumstances exist.     The land management company and the utility must maintain and repair its own property within the railroad right-of-way and bear responsibility for its own acts and omissions, except that the utility must be responsible for any bodily injury or property damage that typically would be covered under a standard railroad protective liability insurance policy.  A utility must have immediate access to a crossing for repair and maintenance of existing facilities in case of emergency. Applicable engineering standards must be complied with for utility facilities crossing railroad rights-of-way.    The engineering specifications must address the applicable clearance requirements as established by the National Electrical Safety Code and the American Railway Engineering and Maintenance of Way Association.

Unless otherwise agreed by the parties and subject to Section 389.588, a utility that locates its facilities within the railroad right-of-way for a crossing, other than a crossing along a state highway, must pay the land management company a one-time standard crossing fee of $1500 for each crossing plus the costs associated with modifications to existing insurance contracts of the land management company. The standard crossing fee must be in lieu of any license, permit, application, plan review, or any other fees or charges to reimburse the land management company for direct expenses incurred by the land management company as a result of the crossing. The utility must also reimburse the land management company for any actual flagging expenses associated with a crossing in addition to the standard crossing fee.

The provisions of the bill cannot prevent a land management company and a utility from otherwise negotiating the terms and conditions applicable to a crossing or the resolution of any disputes relating to the crossing and cannot impair the authority of a utility to secure crossing rights by easement through the exercise of the power of eminent domain.

If a utility and land management company cannot agree that special circumstances exist regarding a particular crossing, the dispute must be submitted to binding arbitration in accordance with the commercial rules of arbitration in the American Arbitration Association.  However, each party may also pursue relief in a court of proper jurisdiction and the winning side must be awarded attorney fees. If a dispute involves only compensation associated with a crossing, the utility may proceed with the installation of a crossing while the arbitration is pending.

The bill does not modify any power of condemnation or grant the exercise of eminent domain power to any entity.

The provisions of the bill apply to a crossing commenced prior to August 28, 2013, if an agreement concerning the crossing has expired or is terminated and to a crossing commenced on or after August 28, 2013.


The bill provides immunity from suit for providers of communication related services for providing information to law enforcement officials or agencies under Section 392.415.


The bill allows specified telecommunications companies that are currently regulated by the Missouri Public Service Commission and have maximum price caps to seek a waiver from the commission for the price cap regulations in the same manner waivers are currently granted for other rules and regulations.


The bill also makes the following changes to telecommunication regulations:

(1)    Allows a telecommunications company to include any, all, or none of its rates for any, all, or none of its retail services in a tariff filed with the commission;

(2)    Exempts specified telecommunications companies that hold a state charter or are licensed to do business under Chapter 392 from most rules and regulations relating to the retail services under Chapter 386, except the companies may voluntarily comply with the commission’s orders, rules, or statutes by notifying the commission. Telecommunications companies are still required to collect the universal service fund surcharge; report the intrastate telecommunications service revenues necessary to calculate the commission assessment, universal service fund surcharge, and telecommunications programs under Section 209.255; and comply with the emergency location requirements;

(3)    Exempts broadband and other Internet protocol-enabled services from the regulations under Chapters 386 and 392 except that voice over Internet protocol services must comply with the fees and registration requirements enforced by the commission under Section 392.550;

(4)    Specifies that the commission retains jurisdiction over all matters delegated to it by federal law and the bill does not modify these duties in any way; and

(5)    Allows telecommunications companies to register with the commission and obtain certification using the same process as used for voice over Internet protocol service under Section 392.550.3.

Click here for the full text of HB 331.

If Governor Nixon signs this legislation into lex, the existing Missouri state motto “Salus populi suprema lex esto” should change to “Salus AT&T suprema lex esto”.


U.S. Supreme Court Upholds FCC Shot Clock

Just released this morning is the U.S. Supreme Court decision that, on a 6-3 vote, upholds the FCC Shot Clock.

The decision is linked below.

“SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined.”

Many will offer their view of the decision, which is essentially a reaffirmation of the Chevron Deference rule.  For now, I’ll leave it to you, the readers, to reach your own conclusions.

What we know, now, is that the FCC Shot Clock is here to stay.

What we expect now is that the FCC will move to a rulemaking or declaratory ruling regarding Section 6409(a) [47 U.S.C 1455(a)]



Assembly Bill 162 in a Cocoon for 2013. Now what?

AB 162 will try to re-emerge in January 2014.  Let's take the time now to educate our electeds.
AB 162 will try to re-emerge in January 2014. Let’s take the time now to continue to educate our electeds.

Now that Assembly Bill 162 has been removed from California’s legislative agenda for 2013, it’s vital that we remember that the Bill is not dead; it is merely awaiting a rebirth in some form in 2014.

Because of the reality of re-emergence, we need to continue to educate Assembly Member Holden and his staff about the inherent unintended consequences of this seemingly simple, yet  highly technical legislation.

Coupled with education, we must work with  elected officials in the Assembly and Senate to show them that there is no significant special problem for AB 162 to try and fix.

Finally, we need to continue monitoring what  happens at the federal level with Section 6409(a).  That legislation, which has serious constitutional deficiencies,  will be vicariously defended by the wireless industry.  We also need to track that happens with the pending U.S. Supreme Court decision regarding the FCC’s Shot Clock in the Arlington case.

Thanks are due to hundreds of constituents, local governments, and staffers who all came together to work with Mr. Holden to explain why AB 162 as proposed and then amended is not in the best interests of the people of California.

We also owe genuine thanks to Mr. Holden for hearing those many voices and pulling back his Bill…for now…rather than forcing a slug-out in Sacramento.

It’s true…bad facts do make bad law.



Assembly Bill 162 Pulled – Will Not Come Back Until At Least 2014

Hot news just in:  AB 162 has been pulled from this year’s legislative calender.

This means that the Bill will not come up for consideration until at least next January.

Many people; many local associations; and many local governments have been instrumental in achieving this result, and they all deserve thanks.

This, however, is not a time to gloat; this is a time to educate the elected who were not aware of what was happening, and to continue to educate the elected who were in the loop about the important issues, both policy and technical, which surround this discussion.

Education is vital because AB 162 is not dead; merely pushed to next year’s legislative calendar.  Our goal should be to work to showing the various parties why this Bill should be withdrawn from any future consideration.

Thanks to all who helped get out the word…don’t give up now…there’s still the Bill out there.



Assembly Bill 162 Wireless Bill Amended – Analysis

Assembly Bill 162, The Wireless Collocation Bill, Amended by its Author –


[Updated 4/24/13 7:28 p.m. – Added link to PDF version of this analysis.  See link at bottom of this page]

As a reminder, on March 21, 2013, Assembly Bill 162 was dropped into the hopper in Sacramento to impose severe new rules requiring mandatory and lightning fast wireless collocation approvals or defaults by California local governments.  Assembly Member Holden is the Bill’s sponsor.

Yesterday, Assembly Member Holden amended AB 162 to facially address some of the concerns raised by local governments. The proposed changes, however, are largely cosmetic and in most cases legally ineffective as to actually addressing local government concerns, as I will discuss in detail below.  That said, Mr. Holden also took the opportunity to go beyond the cosmetic changes by introducing new language to his Bill that would actually extend the impact of the proposed state legislation far beyond that intended by the federal legislation, Section 6409(a) of the Middle Class Tax Relief Act of 2012.

To view the past and current versions of the bill, visit http://tinyurl.com/wireless162.

Here is my analysis [1] of each of yesterday’s amendments to AB 162:

1. Added a new section readjusting the numbering of the subsequent sections. The new Section 1 provides a legislative purpose and intent for the Bill:

SECTION 1. The Legislature hereby finds and declares all of the following:

(a) Nearly one in every three Californians communicates only via a cellular device and does not own or operate a landline telephone.

(b) Of the 240,000,000 calls to telephone number 911 for emergency assistance placed nationwide each year, 70 percent now originate from cellular devices.

(c) In 2010, 5 percent of all 911 calls originating from cellular devices were dropped, resulting in 8,400,000 dropped 911 calls.

(d) Recognizing the public’s shift toward cellular telephone use, the Legislature passed Senate Bill 1375 (Chapter 332 of the Statutes of 2010), authorizing telephone corporations to deactivate 911 emergency service from any landline telephone not subscribing to paid telephone service.

(e) Given the increased reliance on cellular phones, maintaining signal strength and call reliability for 911 calls from cellular telephones is critical to protecting public safety and saving lives of Californians.

(f) The Final Report of the National Commission on Terrorist Attacks Upon the United States (known as the 9/11 Commission Report) identified the lack of coordination among first responder agencies and communication challenges in the 9/11 attacks and emphasized the need for uniform and reliable communications for all first responders.

(g) The federal Middle Class Tax Relief and Job Creation Act of 2012 (Public Law 112-96) creates a framework for the public sector to partner with commercial providers to leverage the private sector’s investments in broadband technologies to efficiently deploy an interoperable broadband network for public safety.

(h) The federal Middle Class Tax Relief and Job Creation Act of 2012 (Public Law 112-96) allocated seven billion dollars ($7,000,000,000) for grants to states to build the nationwide public safety broadband network.

(i) The Federal Communications Commission has found that delays by local governments in approving ministerial requests have delayed the implementation of next-generation broadband services for consumers and first responders.

(j) It is the intent of the Legislature to increase network capacity on existing wireless structures in order to serve the needs of safety personnel and the people of the state.

AB 162 now seems to also benefit public safety services, but as will be discussed below, the benefit is illusory.

2. Section 2(a) of the bill has been amended to read,

Notwithstanding any other law, and pursuant to Section 6409 of the federal Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. Sec. 1455), a local government shall approve and may shall not deny any eligible facilities request for a modification of an existing wireless telecommunications facility or structure that does not substantially change the physical dimensions of the wireless telecommunications facility or structure.

The bolded changes now make this section inconsistent with Section 1455(a) by replacing “may” with “shall,” but far more importantly, the addition of “or structure” extends the definition of a wireless telecommunications facility to include the structure below the base station and/or antenna.

Why is the reference to ‘structures’ so important to the wireless industry? Because by adding “or structure” the overall height of an existing office building with wireless antennas on the roof must now be counted towards the 10% increase permitted for the wireless site.  Say that there is a 10 foot tall antenna enclosure on the roof of a 15 story building (call the building 150 feet tall). Under the prior language of AB 162, the height of the antenna enclosure could increase by 10 percent, or only 1 foot.  By including the “or structure” language, the non-discretionary increase in height would be 16 feet (10% of the 150 foot building plus the 10 foot tall antenna enclosure above the roof).

3. Section 2(b) is amended to read:

The failure to act on an eligible facilities request within 45 90 days of receipt of a request shall be deemed an approval of the request. The 45 90 days shall be tolled if the request is determined to be incomplete. If the request is determined to be incomplete, the local government shall comply with subdivision (c) of Section 65943 of the Government Code.

4. Section 2(d)(1) is added to the definitions:

(1) “Collocation” means the mounting of the wireless telecommunications facility and related equipment on an existing tower, building, or structure for the purpose of transmitting or receiving signals for telecommunications or public safety services.

The new definition above extends the reach of collocation to include buildings and structures, with the negative impact already described.  However, this definition goes far beyond the prior poorly crafted language to extend AB 162’s reach to all “telecommunications or public safety services.”

Neither “telecommunications” or “public safety services” are defined in AB 162, but would arguably extend AB 162’s collocation provisions and benefits to any type of radio communications (telecommunications) including without limitation AM/FM/TV stations, commercial two-way radios, point-to-point microwave, WI-FI, amateur radio, radar, CB radio, etc.

5. Section 2(d)(2) of the definitions now reads:

“Public safety broadband communications system” means any regional interoperable communications system, the nationwide public safety broadband network, the first responder analog-D block, or any other government-operated communications system used by first responders or emergency management systems.

Given that the Section 2(d)(2)(D), just discussed, has no real new value to local governments, Section 3 merely acts as a limitation on—rather than an extension of—local government authority.  General government radio communications, such as between permit inspectors and the permit department, or between any non-emergency personnel are excluded by the limiting language in Section 3.

6. Section 4(A) and 4(C), defining “Substantially change” are amended to read:

(A) The mounting of the proposed antenna on the wireless telecommunications facility or structure would increase the existing height of the wireless telecommunications facility by more than 10 percent, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this subparagraph if necessary to avoid interference with existing antennas.

(C) The mounting of the proposed antenna would involve adding an appurtenance to the body of the wireless telecommunications facility or structure that would protrude from the edge of the wireless telecommunications facility more than 20 feet, or more than the width of the wireless telecommunications facility at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this subparagraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the wireless telecommunications facility via cable.

As before, the addition of “or structure” in (A) and (C) operationalize the expansion of AB 162’s height benefit for wireless carriers by including the height of an underlying structure or building into the calculation of the permitted 10% increase.   Interestingly, by adding “or structure” to (C), antennas will now be permitted to extend horizontally from the roof and perhaps as far as to violate setbacks and even property lines.

Section 4(D)’s former language is struck and replaced as shown below:

(D) The mounting of the proposed antenna would involve excavation outside the current wireless telecommunications facility site, defined as the current boundaries of the leased or owned property surrounding the wireless telecommunications facility and any access or utility easements currently related to the site.

 (D) The eligible facility request fails to comply with all existing aesthetic requirements imposed by a local government for the specific facility subject to the request. Nothing in this section shall be construed to require that any new aesthetic enhancements to be made to an eligible facility that were not existing requirements at the time the eligible facility request was made.

The deletion of the former (D) language now means that any excavation outside the current wireless telecommunications facility site, defined as the current boundaries of the leased or owned property surrounding the wireless telecommunications facility and any access or utility easements currently related to the site, would not constitute a substantial change to the existing site thereby pulling a collocation project out of the scope of AB 162’s mandatory approval requirement.  Accordingly, if an excavation outside the current wireless telecommunications facility site is proposed as part of a collocation—even if the excavation extends to another property—a local government would be barred from denying the otherwise qualifying project.  This new language is a backdoor way of adding new utility routes to the mandatory approval requirement of AB 162.

Turning now to the replacement (D) language, it says in essence that a collocation is not one that “fails to comply with all existing aesthetic requirements imposed by a local government for the specific facility subject to the request.”

Translated into English, the language just discussed appears to say that if a current site that was required by its original approval to be camouflaged is not, in fact, constructed to meet the aesthetic requirements set out in the original permit, then the site is not subject to AB 162.

On its face, the new (D) language would be a good provision for the public were it not for the fact that this new language is completely preempted by 47 U.S.C. 1455(a), the federal law.

Recall that AB 162 will be subject to the sweeping preemption of Section 1455(a), which begins by saying “Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law…” (emphasis added).  As the federal law would clearly preempt any non-compliant provision in state law, a wireless applicant would likely successfully argue that AB 162 notwithstanding, it has a preemptive federal right to modify a site taking it from camouflaged to bare steel, if the carrier so elects, and therefore AB 162’s aesthetic protection language is without legal effect.  The choice would be with the applicant as to whether it wishes to comply with this provision of AB 162, not that it must comply with this provision.  Should the applicant so choose to avoid this provision of AB 162, it would be as if the new proposed (D) language was not even a part of AB 162.

To make the industry’s benefit clear by the camouflage provision in (D), even if the proposed (D) language were legally enforceable (or if an applicant elected not assert its federal rights preempting this portion of AB 162), any addition to an existing camouflaged site could not be required by a local government to be camouflaged.

To understand the scope and size of this massive loophole in the amendment to AB 162, consider the following before photograph and after-simulation of an existing wireless site in Los Angeles.  The simulated modification would be subject to a mandatory approval under AB 162 without the ability of a local government to condition the addition to be camouflaged:


Photo/Photo Simulation by Jonathan Kramer

The net result of the new (D) language is that the camouflage benefit of the existing project (the before photo above) would be destroyed by AB 162 as currently amended.

Conclusions and Recommendations

AB 162 as proposed in March was a massive attack on local government authority to control wireless siting.  As now amended in April, it is truly a wolf-in-sheep’s-clothing.  The Bill now appears to provide benefits to local governments and the public, yet each of those benefits is either without value, or illusory.  The wolf part is the inclusion of the “structure” element far-and-away exceeding the scope of the existing federal law.

This Bill, as now amended, is also far worse than the federal law, 47 U.S.C. § 1455(a), in the new privileges it would grant.

Ultimately, AB 162 is fatally flawed, inconsistent with federal law, and cannot be saved by amendments.  It should be vigorously opposed by local governments and their constituents who are interested in remaining engaged in wireless siting matters in California.

Please feel free to share this analysis with interested local government parties and the public at large.

Continuing updates regarding AB 162 will be available at here at http://CellTowerSites.com.  For now, and especially now, I continue to call this legislation the WIPE ACT (the Wireless Industry Public Exclusion Act).

Finally, please download a PDF of the bulk of this message and share it with your friends and elected officials:  Please  CLICK HERE.

[1] Note: The opinions contained in this communication are solely those of Jonathan L. Kramer, Esq., and do not necessarily reflect those of any client or friend of this firm.  I’m pretty sure they don’t reflect the views of the wireless industry.


Urgent: California 6409(a)/Shot Clock Law Floated in Sacramento

California Assembly Bill 162California Assembly Bill 162

[Updated March 28, 2013]
[Updated March 24, 2013]
[Updated March 23, 2013]
[Original March 22, 2013]

[Update/Heads-Up: I’ve received a copy of Assembly Member Holden’s Fact Sheet on AB 162, which has been christened the “Broadband Expansion Act.” I’ve rechristened it the “Wireless Industry Gift and Public Exclusion Act of 2013.” In the next day or two I’ll be posting the Fact Sheet, and my point-by-point analysis, rebuttal and corrections to the Fact Sheet.]

The wireless industry has quietly dropped an awful bill, Assembly Bill 162, into the hopper in Sacramento to impose severe new rules requiring mandatory and lightning fast wireless collocation approvals by California local governments.

Assembly Bill 162 is a combination Super Section 6409(a) coupled with a Super Shot Clock.  To add icing to the wireless industry’s cake, the bill would effectively eliminate any consideration of whether the applicant has a significant gap in its service, and would define its key terms so broadly as to make nearly every component part of a wireless tower or site (including components not now considered to be either).

Well, really, there’s nothing super about this bill if you’re either a concerned citizen or a local government.

Assembly Bill 162, sponsored by Assembly Whip Chris Holden D-41, started as a housing bill in January.  It was gutted yesterday, on March 21, to become an 8-figure gift to the entire wireless industry.

In its now-morphed form, Assembly Bill 162 would add Section 65964.5 to the Government Code to do the following:

1.  Parrot the opening of Sec. 6409(a) of the Middle Class Tax Relief Act of 2012 by saying,

(a) Notwithstanding any other law, and pursuant to Section 6409 of the federal Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. Sec. 1455), a local government shall approve and may not deny any eligible facilities request for a modification of an existing wireless telecommunications facility that does not substantially change the physical dimensions of the wireless telecommunications facility.

2. Then the next section would make the failure of a Local Government to act on such a request within 45 days result in the project being deemed approved. 

(b)The failure to act on an eligible facilities request within 45 days of receipt of a request shall be deemed an approval of the request. The 45 days shall be tolled if the request is determined to be incomplete. If the request is determined to be incomplete, the local government shall comply with subdivision (c) of Section 65943 of the Government Code.

Section (b) would effectively eliminate any possibility of public hearings in advance of mandatory approvals.  The 45 day shot clock would cut in half the time determined by the FCC to be adequate to process collocations.  The effective result would be that wireless collocation projects would take priority over virtually every other project considered by a local government.

Section 65943(c) of the Government Code provides for a formal appeal process for projects deemed incomplete by a local government.   Since this is already state law, it seems redundant here.

3.  Forget about coverage gap proof for collocations.  Subsection (c) of Assembly Bill 162 would kill that:

(c) A local government shall not require proof of gap in coverage as part of the approval of an eligible facilities request.

4.  Next, the proposed legislation goes on to define key terms:

(d) For purposes of this section, the following definitions shall apply:

(1) “Eligible facilities request” or “request” means any request for modification of an existing wireless telecommunications facility that involves any of the following:

(A) Collocation of upgraded transmission equipment.

(B) Removal of transmission equipment.

(C) Replacement of transmission equipment.

(2) “Substantially change” means any of the following:

(A) The mounting of the proposed antenna on the wireless telecommunications facility would increase the existing height of the wireless telecommunications facility by more than 10 percent, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this subparagraph if necessary to avoid interference with existing antennas.

(B) The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four equipment cabinets, or more than one additional equipment shelter.

(C) The mounting of the proposed antenna would involve adding an appurtenance to the body of the wireless telecommunications facility that would protrude from the edge of the wireless telecommunications facility more than 20 feet, or more than the width of the wireless telecommunications facility at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this subparagraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the wireless telecommunications facility via cable.

(D) The mounting of the proposed antenna would involve excavation outside the current wireless telecommunications facility site, defined as the current boundaries of the leased or owned property surrounding the wireless telecommunications facility and any access or utility easements currently related to the site.

(3) “Wireless telecommunications facility” means equipment and network components, including towers, utility poles, transmitters, base stations, and emergency power systems that are integral to providing wireless telecommunications services.

The definitions in Assembly Bill 162 are so broad as to encompass nearly every portion of a wireless system, including DAS networks.  Moreover, the definitions are in conflict with the plain words of the proposed statue as to what constitutes a substantial change in the physical dimensions of the wireless telecommunications facility.

The definitions (and in part the lack of definitions) would also open the door to the conversion of fully camouflaged sites to morph into ugly monopoles or visible sites.  Moreover, the definitions would allow for the mandatory installation of any type of emergency power system (including diesel powered generators and hydrogen fuel cells) at any cell site.

Assembly Bill 162 is one of the worst bills that would essentially kill public input into wireless siting process for collocations in California.  It would speed up the process to the point where the public would be denied any effective opportunity to have any meaningful review, much less input, on proposed wireless collocations (which seem to be the bulk of wireless projects in California now).

The sponsor of Assembly Bill 162 is one of the most powerful members of the Assembly, and the owner of CHMB Consulting Firm (a real estate consulting firm in Pasadena).  No doubt Mr. Holden’s goal is to promote the rapid deployment of more wireless service in California, but Assembly Bill 162 in its current form is anti-constituent and anti-government.  As it is now set out, the Bill amounts to a massive gift to the wireless industry at the expense of the public and local governments.

Members of the public will need to directly communicate with Assembly Member Holden about Assembly Bill 162, as well as their own local governments and elected representatives, if there is to be any chance to maintain meaningful community and local government involvement in wireless tower collocation siting matters in this state.

To read the original housing bill, now struck, with the replacement wireless industry gift language, click to open the PDF: AB 162 Assembly Bill – AMENDED

Here is a link to the current version of Assembly Bill 162 making its way through the California Legislature: http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_162&sess=CUR&house=B&author=holden

To express your views about Assembly Bill 162 directly to Assembly Member Holden, you can use his web site’s comment form:  https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD41

Check back here often to find out what’s happening with Assembly Bill 162.  Share this post with your friends and your local elected officials (who I hope are also your friends).

Thanks to J.D. for his help making this post even better!