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Kramer’s FCC Intergovernmental Advisory Committee Presentation 7/1/13

Posted on July 4, 2013 by Dr. Jonathan L. Kramer

On June 5, 2000, following nearly two years of work, the FCC released its national guidance, “A Local Government Official’s Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance” (the “Local Official’s Guide”).

The Local Official’s Guide was developed at the behest of the FCC’s Local and State Government Advisory Committee (the “LSGAC”), which was the predecessor of the current FCC Intergovernmental Advisory Committee (“IAC”).

As set out in preface to the Local Official’s Guide, that document was developed to serve and educate state and local governments officials and the public by providing “basic information, in a form accessible to officials and citizens alike, that will alleviate misunderstandings in the complex area of RF emissions safety.”

I had the distinct privilege of being one of the primary authors of the Local Official’s Guide, and I also served as an editor and the illustrator of that document.

Since the release of the Local Official’s Guide some 13 years ago, it has been relied on and used by thousands of state and local government agencies throughout the United States to help them understand RF emissions in the context of local land use, permitting, and zoning matters.

The Local Official’s Guide has well-served the public, yet given the feedback I’ve received from governments and the public since the Guide was first published, there is keen public interest in accessing more information on and related to RF emissions.

On March 29, 2013, the FCC released its “First Report and Order Further Notice of Proposed Rule Making and Notice of Inquiry” (Click to read: FCC 13-39).

In the Order, the FCC said of the Local Official’s Guide,

The Local Official’s Guide provides a framework for local and state governments and wireless service providers to cooperate in the determination of compliance with the Commission’s RF exposure limits. We request comment on what additional information should be provided to consumers and in what format to assist in making decisions about reducing exposure. We also specifically seek comment on how we can ensure that such information is presented in formats that are accessible to
people with disabilities.”

(R&O at ¶ 231)

Given of the pending Rule Making at the Commission, the current version of the Local Official’s Guide will soon be outdated from a rules/technical standpoint. This opens the door to an opportunity for the FCC to revise, expand, and update the Local Official’s Guide.

FCC Intergovernmental Advisory Committee meeting on July 1, 2013. Click to enlarge.

On Monday of this week (July 1, 2013), I was an invited speaker at the FCC’s Intergovernmental Advisory Committee meeting at the Commission’s headquarters in Washington D.C. I was asked to provide the IAC with my thoughts regarding a path forward to reaching a new edition of the Guide.

I presented the IAC with a deck of slides regarding how the Local Official’s Guide came into existence; why it now needs to be overhauled; and my recommendations for a work plan to achieve a revised, expanded, and even more useful and accessible Guide for Local Government Official’s and the public.

If you would like to see the slides I presented to the IAC, you may CLICK HERE to download them in PDF format from the Commission’s web site.

Following my formal presentation, the IAC Members posed a variety of thoughtful and targeted questions regarding the Guide and my proposed work plan. Commission staff also provided their input to the Committee regarding the utility of the current Guide, and the value to the public for a new guidance. Finally, I suggested to the IAC that the new Guide be revised on an as-needed basis perhaps every 3 to 5 years to reflect new wireless technologies and deployments.

I’m very pleased to report that at the end of the Q&A following my presentation, the IAC unanimously directed me to proceed with the drafting of the revised, updated, and expanded Guide. I’ll be working with Commission staff and other subject matter experts as I proceed forward through the drafting process.

A common question I anticipate is, ‘When will the new Guide be released?’

Much of my drafting can and will proceed in advance of the finalization of the Commission’s new rules. The goal is to have the new Guide ready for release right after the new federal RF emissions rules are adopted by the Commission. Given, however, that I will not be privy to the Commission’s final new rules in advance of the public adoption date, the new Guide will not be ready for public release by the Commission until just after the new rules are approved by the Commissioners.

Jonathan

FCC Approves SoftSprintClear deals…Apparently

Posted on July 3, 2013 by Dr. Jonathan L. Kramer

According to a Bloomberg report today citing unnamed sources, two of the three sitting FCC Commissioners have approved the big TwoFer: Clearwire’s takeover by Sprint, and Sprint’s sale of itself to Softbank.

The decision, if in fact it has been made, has not yet been posted to the FCC’s web site.

Presuming the truth of the Bloomberg story, no one should be surprised by this massive frequency consolidation given Sprint’s Network Vision project. These deals have been about access to bandwidth.

Bandwidth is everything.

U.S. Supreme Court Upholds FCC Shot Clock

Posted on May 20, 2013 by Dr. Jonathan L. Kramer

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)]

Jonathan

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

Posted on April 27, 2013 by Dr. Jonathan L. Kramer

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.

Jonathan

FCC Formally Revisits RF Emissions Standards

Posted on April 1, 2013April 1, 2013 by Dr. Jonathan L. Kramer

The FCC has released its “FIRST REPORT AND ORDER FURTHER NOTICE OF PROPOSED RULE MAKING AND NOTICE OF INQUIRY in a proceeding that will reshape the Commission’s RF emissions safety standards. The current standards were adopted after the 1996 Telecom Act. The Commission revisits its rules now largely prompted by the GAO.

I suspect the greatest final rule changes that will occur will be in area of handset emissions (the “SAR” or specific absorption rate rules), rather than base station emissions.

This process, which will span into the Summer, will be a lightening rod for public comment given the free-floating fear that the current rules for higher power base stations.

Here is the current rulemaking notice: fcc.rf.20130329.FCC-13-39A1

FCC OKs T-Mobile/MetroPCS Merger: Free Lease Analysis for Landlords

Posted on March 13, 2013March 13, 2013 by Dr. Jonathan L. Kramer

The FCC voted to approve T-Mobile’s application to acquire MetroPCS.

The next step–and perhaps the last real hurdle before the merger can be completed–is an affirmative vote of MetroPCS shareholders during a scheduled April 12 shareholders meeting.

For MetroPCS site landlords, this is a major step towards the shuttering of some 10,000 MetroPCS sites. See my story on this from last November.

Most likely, the earliest hits will occur to cell sites that presently have both MetroPCS and T-Mobile leases. The likely next round will be for MetroPCS sites located near existing T-Mobile sites. Finally, it’s quite likely that some T-Mobile sites will be shuttered where an existing collocated or nearby MetroPCS site will better suit the needs of the merged company. This may well be the case if you area a T-Mobile site Landlord currently receiving an ab0ve-market rental rate, and a suitable nearby MetroPCS site is available for joint use.

Is your existing cell site lease and income at risk? No-charge lease analysis for MetroPCS and T-Mobile Landlords.

If you are presently a MetroPCS or T-Mobile site Landlord, Telecom Law Firm, P.C. is offering a no-charge, no obligation lease review to help you quantify your risk, prepare for possible site termination, and develop strategies to deal with the outgoing carrier. Just give us a call toll-free on 855-CELL SITE (855-235-5748 ) and let’s talk. You won’t be on the clock.

FCC Offers “Guidance” on Sec. 6409(a)

Posted on January 26, 2013January 26, 2013 by Dr. Jonathan L. Kramer

Yesterday, January 25th, the FCC released a public notice titled, “WIRELESS TELECOMMUNICATIONS BUREAU OFFERS GUIDANCE ON INTERPRETATION OF SECTION 6409(a) OF THE MIDDLE CLASS TAX RELIEF AND JOB CREATION ACT OF 2012” (DA 12-2047).

As an aside, I note that the Commission did not consult with its own Intergovernmental Advisory Committee, much less advise them of the release of this Guidance in advance.

The Commission crafted its Section 6409(a) Guidance to provide the public its own view of how state and local governments should interpret the following self-created questions:

What does it mean to “substantially change the physical dimensions” of a tower or base station?
What is a “wireless tower or base station”?
May a state or local government require an application for an action covered under Section 6409(a)?
Is there a time limit within which an application must be approved?

I’ll let you read the Guidance for yourself (see link below) to learn the Commission’s thoughts in response to its four questions. I’m not going to get into my specific thoughts about the Guidance other than to say that it is flawed and overreaching in most areas covered. The only bright light is that the Commission did recognize that carriers are not exempt or excused from following the state or local government application process for collocations covered by Section 6409(a).

Importantly, however, there is about a 103% certainty that wireless carrier representatives will show up to local governments toting a copy of the Guidance misrepresenting it as the way that 6409(a) must be read and understood by those governments. That will be factually incorrect, but its tough for planners at “the counter” to critically evaluate a document bearing the FCC seal. That critical evaluation and the inevitable challenges to the Guidance will be a job for attorneys and stakeholder organizations like NATOA.

At the end, the Commission’s Guidance is advisory only. Given the fundamental omissions and differences in Section 6409(a) (some of which are acknowledged by the Commission), Section 6409(a) remains a moving target, as does compliance with that moving target.

Click here to read the FCC’s Guidance on 6409(a)

Clearwire to sink from sight/site

Posted on December 17, 2012December 17, 2012 by Dr. Jonathan L. Kramer

(Updated 4:41 p.m.; added AGL Magazine story link.)

Well, it’s almost over. Clearwire, that is.

Clearwire will sink from site, er, from sight as SoftSprint (or someone else depending on the investor law suits will will claim insufficient value to be paid by Sprint) ponies up the relatively small bucks to buy the rest of Clearwire that Sprint doesn’t already own.

So Clearwire’s WiMax is dead. Clearwire’s shift to LTE is dead. Clearwire’s microwave sites will soon be dead.

Clearwire is all but dead. The corpse is worth more dead, mainly if not entirely because of the FCC’s spectrum licenses it presently owns…and soon will transfer. My gut says that the existing sites are mostly useless expect for some possibility of site-to-MTSO backhaul.

I bet Google’s sorry it jumped ship in February of 2012, receiving only $1.60 for each of its 29 million shares (something greater than a 90% loss on its original investment). With the current buyout at $2.97 per share, that’s nearly $40m that Google would have relieved had it not jumped early. Still quite a loss over what they paid for the shares originally, but $40m is still a lot of money for Google…like a couple of hours of revenue. Okay, maybe Google won’t care so much.

Expect that if you are negotiating with Clearwire now, those negotiations will freeze. The REALLY cold freeze.

A lot of Clearwire site landlords should expect the ‘really bad news’ letter in about 6 months or so. If Sprint wins control of all of Clearwire, and it’s true to form, then they’ll offer landlords sucker deals to take on the liability for the non-removal of portions of Clearwire’s equipment. (See my posting on this subject HERE.)

AGL Magazine has good story coverage with quotes, which you can read by CLICKING HERE.

Another one bites the dust.

jlk

FCC Likely to Revisit RF Emissions Safety Rules

Posted on June 18, 2012June 18, 2012 by Dr. Jonathan L. Kramer

Wireless Week is reporting that the FCC may open an inquiry into its RF emissions safety standards.

WW reports that Chairman Julius Genachowski is circulating a draft inquiry among the Commissioners that may (and is likely to be) voted on by the full Commission to require a in-depth review of the FCC’s existing environmental RF rules. Those rules are found at 47 C.F.R. § 1.1307 et seq., and discussed in terms approaching plain English in the Commission’s widely-used publication, “Local Government Official’s Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance” (which I co-authored and co-edited).

If the Commission takes over the reins on this hot potato subject, it’s my opinion that the Commission is very unlikely to change the existing rules regarding cell towers, but it make take a closer look at the rules regarding Specific Absorption Rate (“SAR”) which govern cell phone handsets.

Should the Commission proceed forward, I would expect the review process to take upwards of a year to complete. During this period, it’s very likely that segments of the public will call on local governments to halt cell siting reviews and permitting pending the outcome of the FCC’s review. The simple answer is that unless the FCC directs state and local governments to halt siting reviews (somewhere around a 0.00000% chance, in my view), the usual local processing of wireless site permits should continue unchanged.

Remember that under Section 704 of the Telecom Act, local governments are permitted to determine planned compliance with the existing FCC rules. Section 6409(a) of the Middle Class Tax Relief Act would suggest that the authority in Section 704 is only applicable to emissions safety reviews of new wireless sites, and perhaps not applicable to “collocations” at “eligible facilities” (whatever those terms mean as they are not defined by Congress).

Finally, I expect that if the Commission moves forward with a review of RF emissions safety, it’s quite likely that the wireless industry—freshly emboldened by its facial win with Section 6409(a)—will use the inquiry as a means to promote their notion that no RF safety reviews should be conducted or considered by state and local governments.

Stay tuned…this may well get interesting.

Sprint(ing) Forward to 800 MHz LTE

Posted on May 25, 2012 by Dr. Jonathan L. Kramer

The FCC has granted Sprint’s request to allow it to deploy LTE services in its 800 MHz band assignments.

This is a big deal, both for Sprint and for LTE deployment as the de facto 4G-ish standard.

The FCC’s decision (found HERE) allows Sprint to re-purpose its Nextel 800 MHz spectrum (the old iDEN band) and bond it with Sprint’s 1900 MHz spectrum to create a ‘super LTE’ channel (my term, not theirs). Mathematically, this is represented by the complex formula:

zoom(800,000,000hz) x zoom(1,900,000,000hz) = ZOOM(WOW)MBs

Okay, maybe that’s not a legit math formula, but you get the idea. Bonding two high speed data bands is better than having two stand-alone high speed data bands.

This is a huge deal for Sprint as it continues to decommission its old Nextel iDEN services and sites as it deploys its Network Vision project. Network Vision is Sprint’s ‘one-box-does-all’ base station solution that allows it to communicate on multiple bands and using multiple signal protocols for both itself, and for electronic collocators it will charge to deploy on its upgrade cell sites.

For the LTE community, the Commission’s decision signals its intent to relax the existing technical rules that current prevent deployment of 4G-ish services in the cellular and ESMR bands. AT&T and Verizon will likely be even happier than Sprint by the ruling as it will give those firms a legal path forward to phase ultimately out cellular on 860 MHz and bond LTE with their other band assignments, especially 700 MHz.

(Bonding 700 MHz and 800 MHz services makes a lot of technical sense as the signal propagation of those two bands is similar, where the propagation of bonding 800 MHz to 1,900 MHz are dissimilar.)

For LTE-supporters, the Commission’s ruling is a much clearer path forward for dominance of that communications scheme given that the Commission’s door-opening will make LTE and LTE band-bonding even more important.