Quote from PCIA’s Webinar on Sec. 6409

I had a chance to legitimately listen in on the PCIA’s webinar last week providing their membership with the industry’s view of how the new rules are to be used, and taught to local governments.

I won’t go into much detail now about the PCIA’s webinar now, other than to say three things:

1. It was informative to hear the PCIA’s view of the strengths and weakenesses of the new law; and

2. Far more teaching than boasting occured (to the PCIA’s credit); and

3. The ‘quote of the meeting’ (relating to a local government’s limited ability to deny a Sec. 6409 project) was:

“If the tower doesn’t grow, they can’t say no!”

I’ll be sharing more from the PCIA’s webinar when I conduct mine (for local government attorneys/agencies) on April 5th. If you qualify, please sign up at http://bit.ly/sec6409.

About half the slots are now reserved, so please don’t wait until the last moment to sign up. One hour of MCLE credit has been applied for.


Wireless Siting Professionals: A Vanishing Breed?

I’ve been talking with a number of my friends who are in the wireless siting business as contractors. These are the people, mostly independent contractors, who show up at the planning counter to file siting projects representing the wireless carriers. They perform important functions in the wireless permitting process. I have great respect for the work they do, and the way the do their work with the grace and skill that comes from experience and professionalism. Their work starts long before a wireless project ever hit the planning counter.

Some years ago…say 10…it was common for these siting professionals to have the opportunity to develop significant experience doing what they do. They had that chance because of what’s called “Pay Points.” In days gone by, these professionals were not paid on an hourly basis, but rather at the time some event along the process happened, hence the name.

Once the siting professional received the project package (generally the search ring, a blank lease, and other carrier parameters), they’d go out and spot potential properties, research land records, find willing owners, get lease options signed, attend the A&E meetings, and submit the project to the local government for approval. Then they’d stay with the project through the government planning phase, and attend the hearings representing the carrier client. Each major events was a pay point, and each pay point was the incentive to get the work done and stick with the project.

Because there was fairly significant money involved (I’ve been told $10,000 to $15,000 per project was not uncommon), the professionals could afford to stick with the projects that didn’t ultimately pan out because they got the earlier pay points, and had other projects generating different pay points.

But, alas, lots of people got into the siting business, and then the squeeze on pay point amounts came down from the carriers and their master contractors. Essentially, the siting professional were offered more work with fewer dollars. The result is that a core of professionals remain in the siting business today, but they are also looking for every way to cut costs. Some of these professionals have shut down their physical offices and main telephone numbers turning to become virtual firms (read: working from home with cell phones and computers).

One of the more undesirable results of the squeeze today is that lots of much less experienced people are entering the siting business. It shows.

My staff and I see and deal with the greenhorns when we’re negotiating leases on behalf of our wireless landlord clients, and when we’re dealing with project packages tendered for our review through our government planning agency clients. The quality of the work product coming in is declining, as is the fundamental understanding of the processes. All of this leads to longer negotiations and increased review times. It also leads to more of the real professionals leaving the business to find more profitable lines of work in other areas of project management.

Now comes Section 6409. Generally the siting professionals are very excited about the passage of Section 6409, but some (including yours truly) think there’s a fairly significant cloud surrounding a thin silver lining. I suspect Sec. 6409 is going to turn into a real cloud burst casting off even more rain on the quality people in the business of wireless siting.

As 6409 seems to grant broad collocation (really, Co-Siting) authority to the wireless firms, and the approvals appear to occur in some or many cases by right, I expect the large master contractors who work directly for the carriers (i.e., Bechtel, ALU, Ericsson, B&V, etc.) to look to shave their subcontractors costs even more to benefit their own bottom lines. My gut says the master contractors will assign the Sec. 6409 work to in-house employees for the engineering work, and low level permit runners who are paid a relatively modest hourly fee for their work to file the projects with the local governments.

In major markets like Southern California, this will be a huge and increasing amount of the main siting work. Since the Verizon and AT&T LTE projects and the Sprint Network Vision work will apparently fall under Sec. 6409, there goes that slice of the pie from the mouths of the core of professionals.

And since Sec. 6409 will drive carriers to less desirable sites (that term depends on who’s uttering it…but I digress) but with must faster expected approval times, I think that new siting will slow down for a while as carriers look to do their capacity upgrades at the new low hanging 6409 sites.

As I said at the top of this story, I have many friends who are truly professionals in the wireless siting business. Sadly, I expect that a significant number of them will not be in that line of work come a year from now. I hope I’m wrong, but money talks louder than respect for professionalism and experience.


KTLF to Conduct Sec. 6409 Teleconference on 4/5/12

Sec. 6409: A Landmark Change in Wireless Tower Siting
KTLF to Conduct Special Webinar on April 5th for California Local Governments
(California MCLE Application Filed For 1 Hour Credit)

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, who signed the Act into law. The President signed the Act into law. In 145 words, Congress has changed the process for collocations and site equipment changes, and added many new loopholes in the process. Here’s what the new law says:

(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.

The implications of these 145 words will be determined in cases that will queued up in various circuit courts.

Kramer Telecom Law Firm will be presenting a special 1-hour Webinar on April 5th at 10:00 a.m. PDT regarding the new law. This teleconference is open ONLY to local governments and is geared for local government attorneys. There is no charge for local governments to attend this Webinar.

While the teleconference will touch on relevant California laws, the main thrust of the teleconference will be quite useful to local government attorneys across the country.

The teleconference will review the provisions of the new law, and provide nuts-and-bolts strategies to address the challenges the new law raises. There is no limit on the number of persons at each location who can participate, but the number of locations is limited.

California MCLE Credit: An application is being filed with the State Bar of California to grant one (1) hour of general MCLE credit for this presentation.  If you wish to receive MCLE credit (if approved by the California Bar)  please be sure to provide your State Bar Number on the registration form where requested.   If more than one attorney per location seeks credit, be sure to provide all names and bar numbers on the sign-up form in the Questions and Comments section.

For information about reserving a spot for this teleconference, send us an online reservation via THIS LINK. Priority for the limited number of spots will be given in this order: (1) KTLF PC and Kramer.Firm clients; (2) SCAN & NATOA members working for governments; (3) other local governments.


One Industry View of 6409

Lisa Murphy
Lisa Murphy, Esq.

Lisa Murphy, of LeClairRyan in Norfolk, Virginia is an attorney representing wireless carriers in land use matters (read: she represents carriers before government agencies). On February 24th, Lisa and I spoke on a panel at the AGL Conference in Las Vegas, which touched on Section 6409’s potential impacts on the siting process.

Not surprisingly, Lisa and I do not agree on how far 6409 will reach to change the siting process.  That said, the views expressed in her recent blog post are well worth considering in the larger context of the national discussions now beginning on how to implement this new law.

At first glance, this would appear to require all state and local governments to approve collocation requests as well as any site upgrades. What is interesting about the language Congress chose is that it left open the possibility that state and local governments could still deny applications for collocation on structures that are not “existing towers”, as was indicated in a February 22nd blog post by Jonathan Kramer, with whom I presented a program last Friday at the AGL Western Regional Wireless Conference entitled, “What We Can Teach Municipalities About Wireless”. Jonathan advises local governments on how the 1996 Telecommunications Act impacts their authority to zone and permit wireless sites and assists municipalities in their review of wireless site applications. Jonathan’s position is that collocating antennas on structures that are not “wireless towers” could still be subject to denial by municipalities depending on the applicable local ordinances and how they define the term “tower”. Our other co-presenter, Robert Jystad, who represents carriers and tower companies on all facets of site development, and I disagreed with Jonathan on the practical impact the new law would have on site development and site upgrades, but all on the panel agreed that this will no doubt lead to interesting conversations at the local and state level, between lawyers for the industry and state and local government representatives.

I disagree with Jonathan and agree with Robert that Section 6409 will likely trump state and local ordinances to the extent that they prevent modifications to “grandfathered” sites, sites that were never zoned or that pre-date current wireless tower ordinances. I also agree with Robert that Section 6409 should apply to collocation on all structures. Unfortunately, there is no record of Congress’ intent with regard to the interpretation of the phrase “existing tower”, but given its plain meaning and Congress’ explicit intent to usurp the authority of state and local governments to deny collocation and site modification requests, the term arguably applies to any structure that can support wireless antennas. In that regard, Section 6409 may also trump zoning conditions imposed on towers that limit antenna collocation and placement. One thing that Section 6409 did not do was waive any existing requirements imposed by the National Historic Preservation Act (“NHPA”) or the National Environmental Policy Act of 1969 (“NEPA”). As a result, to the extent that a proposed collocation or antenna modification implicates NHPA or NEPA, compliance is still required. Interestingly, Congress did not carve out or exclude from Section 6409 environmental or historical reviews that may be required under state or local law, only federal law.

Lisa makes other interesting and informative points from the industry’s view.  To read her entire blog post click here.  Look around her blog while you’re there.