Here’s the Inside Towers article: https://insidetowers.com/municipalities-cheer-scotus-overturn-of-chevron

…and here’s an extended discussion:

On June 27, 2024, the United States Supreme Court overruled the deferential doctrine it announced forty years ago in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), Now, the Supreme Court holds that the courts must “decide all relevant questions of law . . . and set aside any [agency] action inconsistent with the law as they interpret it.” Loper Bright Enters., v. Raimundo, Secretary of Commerce, No. 22-451, p.12 (S.Ct. June 28, 2024).

Tripp May, Managing Partner of Telecom Law Firm PC says the Supreme Court’s decision in Loper represents a colossal shift in how courts review agency actions, and spells trouble for the wireless industry’s ability to influence the FCC.

What is Chevron deference and why does it matter?

Chevron deference required courts to uphold agency actions, like FCC actions, so long as:

(1) Congress had not specifically addressed an issue or left an ambiguity within the statutory scheme about that issue; and
(2) the agency action was “permissible” within the scope of such statutory gap or ambiguity.

Most importantly, Chevron deference required courts to uphold the agency action that met both these requirements even if the court thought that it had a better interpretation. This now dead doctrine even allowed federal agencies to overrule judicial interpretations given to ambiguous statutes.

Such broad and flexible deference significantly empowered and emboldened federal agencies by largely shielding agency actions from meaningful court challenges. To survive a challenge to an agency’s decisions under Chevron deference, all an agency needed to do was convince a court that the agency’s action reasonably filled a gap or resolved an ambiguity. Over the last four decades, federal agencies have had overwhelming success against judicial challenges to their actions. Loper sends a new and clear signal that the winning streak for federal administrative agencies has come to an end.

What changed after the Loper decision?

Dr. Jonathan Kramer, Telecom Law Firm’s Founding Partner said that Loper overruled Chevron and effectively killed the doctrine that insulates federal agencies from meaningful judicial review. Perhaps the most harmful blow to agency autonomy is the Supreme Court’s holding that federal courts must decide for themselves on the “best” statutory interpretation and should no longer accept an agency action that was merely “permissible” within whatever the statutory gap or ambiguity might reasonably allow. If disputes over statutory interpretation were baseball, the tie no longer goes to the agency.

How does this impact the wireless industry?

At the federal level, the wireless industry has been successful at two things: (1) getting legislation passed riddled with ambiguities, and (2) convincing the FCC to interpret those statutory ambiguities in a way favorable to the industry. Mr. May added that this was a winning strategy under Chevron deference, but almost certainly won’t fly in the new Loper era.

Ambiguous statutes used to open the door for agency discretion. Now those ambiguities invite the courts to second-guess the federal agency’s interpretation. Lobbyists for the wireless industry will have to think longer and harder about whether to push ambiguous statutes like those found in the Telecom Act or the Spectrum Act. Similarly, the FCC will have to think more carefully about whether their interpretations are the best, or merely permissible.

According to Dr. Kramer, wireless industry and FCC lawyers will now have to convince courts that the FCC was exactly right on an issue rather than just hand-grenade close.

The extra degree of difficulty imposed on federal agencies by Loper could well be a good thing: Congress could be spurred to pass clearer and more focused laws, and the FCC might be moved to more carefully consider and discuss whether it faithfully implemented congressional intent before it adopts new rules.

Maybe…just maybe…all the stakeholders will realize that they can avoid the judicial review process altogether if they just reach out and work closer to reach consensus on what the law should be, Mr. May said

The post The End of Chevron Deference: A BIG DEAL for Wireless appeared first on Dr. Jonathan L. Kramer on Wireless Siting & Law.

On October 8, 2023, Governor Newsom signed into law Assembly Bill 965.  Introduced by Assembly member Juan Carrillo (D-Palmdale), the Bill purports to speed up broadband deployment by allowing for batched applications in units of up to 25 or 50 sites per batched application for “substantially similar broadband project sites”.

Please understand that this is actually a ‘small cell deployment bill’ that never once mentions small cells.

If you read between the lines–and it doesn’t take a powerful magnifying glass to do that–you’ll see (like we have) that this law will impact local Public Works agencies far more than Community Development Departments. Given, at least in our experience, that most California public works codes are lacking in wireless regulation, and especially in design standards for wireless facilities in the public rights of way, now is the time to update local PW codes.

Let’s do a preliminary section-by-section walk through the new law and see how it ‘works’ as written, but certainly not in practice. (Please note that TLF will be publishing a California-credit MCLE program at https://CLE.TLF.LAW in the near future that will deep dive into this law and how it may be implemented by local governments in California. Local government attorneys will have free access to that program…just send an email request to Jonathan.)

Note that SEC. 1 and SEC. 2 are the title and legislative ‘findings’, and not discussed here.

Now, on to the main event…

SEC. 3. Section 65964.3 is added to the Government Code, to read:

65964.3. (a) For purposes of this section, the following definitions apply:
(1) “Batch broadband permit processing” means the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit.

Note the word “simultaneous” used here. Many local governments will have to adjust their processing procedures to meet the shot clock requirements discussed below.

(2) “Broadband permit application” means an application or other documents submitted for review by a local agency to permit the construction of a broadband project.

It will be very helpful for a local agency to create a standalone permit application for batched broadband projects. TLF is developing one for use by our clients.

(3) “Broadband project” means the proposed facility, including the support structure and any supporting equipment necessary for operation of the proposed facility. A broadband project may be comprised of one or more components, including, but not limited to, a wireless facility, a fiber optic connection, and other supporting equipment, each of which may require separate permits or authorizations by a local agency.

The definition of “Broadband project” is quite important. It’s a soup-to-nuts, kitchen sink definition that includes poles, wires, cables, electronic equipment, antennas, vaults, pedestals, and more. Additionally, expect to see franchised cable TV operators and non-franchised fiber providers claim rights under AB 965.

(4) “Local agency” has the same meaning as the term is defined in Section 65964.5, except that it does not include a publicly owned electric utility that is subject to Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code.

Cal. Gov. Code 65964.5(a)(2) defines a local agency as meaning “a city, county, city and county, charter city, special district, or publicly owned utility” but as you see in AB 965, there is an exclusion fora  publicly owned electric utility that is subject to Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code.  Essentially, for public power utilities, it’s status quo ante.

(5) “Presumptively reasonable time” means the timeframe, if any, specified in applicable law within which a local agency must review and resolve an application following submission of a complete broadband permit application. The presumptively reasonable time period may be modified by mutual, written agreement between the local agency and the applicant.

Applicable law? Okay, remember that California largely adopts the FCC shot clocks with a few wrinkles. This law, like state law and federal regulations, allows for tolling of the shot clock but “mutual, written agreement”. As always, be very careful when executing a tolling agreement given the industry proclivity to include terms that are damaging to local agencies.

(6) “Substantially similar broadband project sites” means broadband project sites that are nearly identical in terms of equipment and general design, but not location.

Whew. When we talk about “nearly identical” are we talking about 95%? 97%? 99%? The law does not give us guidance, but we’ll get into this key term in our MCLE program covering this new law. The location exclusion makes sense since two “nearly identical” sites cannot occupy the same location…at least in the same dimension in 3D space…it’s a physics thing.

(b) Subject to subdivision (e), a local agency shall undertake batch broadband permit processing upon receiving two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant. Batch broadband permit processing for wireless broadband projects shall be completed within a presumptively reasonable time pursuant to applicable law unless a longer period of time is permitted under the circumstances pursuant to applicable law, including Section 1.6003 of Title 47 of the Code of Federal Regulations.

Something to consider is, ‘who is the applicant?’ In most cases, the actual applicant in fact will be a permitting contractor (e.g., MD7 or Complete Wireless, etc.) or a tower/builder company (i.e., Extenet or Crown Castle), and far less often the carriers directly (such as AT&T, T-Mobile, Dish, and Verizon). This is important because, for hypo purposes, if XY&T Wireless were to use several different firms to submit multiple sites, the applicants in fact would be different firms…even if they all represent XY&T.

(c) If a local agency does not approve broadband permit applications for substantially similar wireless broadband project sites submitted for batch broadband permit processing pursuant to this section and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time or a longer period permitted under applicable law, all of the permits shall be deemed approved pursuant to Section 65964.1.

Local government attorneys will have to look at ALL of the requirements of Gov. Code Sec. 65964.1(a) to understand additional provisions to actually trigger the ‘deemed approved’ remedy.   This will be covered in depth in our MCLE program on this new law.

(d) The Legislature finds and declares that batch broadband permitting processing will allow local governments to still receive permit fees, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide and more quickly connect communities to high-speed internet. This will allow the state to meet the federal broadband funding deadline of December 31, 2024, while creating greater broadband equity amongst communities so more individuals can have access to high-speed internet for emergency response, remote work, telehealth, education, and commerce.

Oddly, this subsection (d) seems to be a legislative finding, not an enforceable provision. Weird.

(e) The requirements of this section shall not apply to eligible facility requests, as defined and governed by Section 1455 of Title 47 of the United States Code.

This little gem is very important as it means that existing sites up for modification that would qualify for 6409(a) treatment are unlikely to be subject to this new law. A first step, then, for any application is to ask whether the site being requested actually exists, and if so to likely deny the application if it would otherwise fall into 6409(a) territory. Moreover, if a batched site up for modification does not have a legal existence (and, in our experience, a fair number don’t have a legal existence), then should the local government deny the entire batch? Again, we’ll deep dive on this in our MCLE program.

(f) (1) This section does not preclude a local agency from requiring compliance with any requirements relating to the design, construction, or location of broadband projects that the local agency is otherwise authorized to impose or enforce under applicable law, including, without limitation, any generally applicable health and safety requirements.

Yup, this is a biggie. Local design regulations (wait…your jurisdiction HAS local design regulations, right?) and code compliance are still very much alive and viable. You don’t? Now would be a very good time to look at a design RESOLUTION (not an ordinance) to fill in some obvious holes.

(2) If a broadband permit application is denied, the local agency shall notify the applicant in writing of the reasons for the denial.

Good practice is to independently list every reason for a denial  but remember not to run afoul of the FCC’s  preemption of RF emissions standards. While it’s possible to deny a site for RF non-compliance, you’ll have to make sure you have the backup to make that finding and to make it stick. The section immediately prior makes clear that local governments can (and I assure you they should) ask for and carefully review RF compliance documentation for every new and modified site.

(g) The provisions of this section shall not apply to poles located within the limits of the City and County of San Francisco, if the poles are used for the primary purpose of operating San Francisco Municipal Transportation Agency public transit vehicles.

This provision in this new law doesn’t take SF Muni poles out of the siting equation…it only makes them subject to a different process. Good work by CCSF here!

(h) Nothing in this section shall supersede, nullify, or otherwise alter the requirements to comply with safety standards, including, but not limited to, both of the following:
(1) Article 2 (commencing with Section 4216) of Chapter 3.1 of Division 5 of Title 1.
(2) The Public Utilities Commission’s General Order No. 128, Rules for Construction of Underground Electric Supply and Communication Systems, or successor rules adopted by the commission.

Okay, let’s break this apart a bit. Section 4216 is the code that sets statewide standards for digging, and DigAlert. CPUC GO 128 governs underground utility construction in California. Oddly, nothing is referenced here to CPUC General Order 95.  GO 95 controls and sets safety standards for overhead utility construction here in California. That’s omission is okay, however, since subsection (f)(1) of this new law above makes clear that a local government maintains its enforcement authority for “generally applicable health and safety requirements” and that certainly includes CPUC GO 95.

(i) (1) A local agency may place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing.

Well, what’s reasonable? I’m glad you asked because, well, its not the local agency that sets the minimum ‘reasonable limits’…

(2) A reasonable limit imposed pursuant to paragraph (1) shall be no less than either of the following:
(A) For a city with a population of fewer than 50,000 or a county with a population of fewer than 150,000, including each city within that county, 25 project sites.
(B) For a city or county with a population greater than the applicable population described in subparagraph (A), 50 project sites.

I’m fairly sure a lot over smaller jurisdictions will claim, rightly, that 25 batched application sites requiring the expediting of decisions or face a deemed approved remedy will disagree with the definition of “reasonable limit”.

(3) A local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the applicant or to expedite the approval of other substantially similar broadband project sites.

Subsection 3 is a double edged sword if I ever saw one.  First, the applicant determines whether a site can be removed from a batched application if requested by the local jurisdiction. Second, a jurisdiction appears able to remove an application on its own if it determines that the removal will expedite the approval of other sites in same batch. (Note the use of the ‘or’ connector in this section.)  Why might a local government not want to remove a non-qualifying site (or two or three or however as might be required) from a batch? Good question…but likely a complex answer.

(j) A local agency may impose a fee on batch broadband permitting processing consistent with Section 50030. Where limited resources affect a local agency’s ability to process applications for a broadband project, including batched applications, a local agency shall work with the applicant in good faith to resolve those resource limitations, which may include, but is not limited to, provision by the applicant of supplemental resources.

Cal Gov Code Section 50030 says that as to telecom facilities constructed by a telephone corporation that has obtained all required authorizations to provide telecommunications services from the Public Utilities Commission and the Federal Communications Commission, local governments permit fees “shall not exceed the reasonable costs of providing the service for which the fee is charged and shall not be levied for general revenue purposes”. Okay, no biggie there. It looks like the law adds a new layer of a good faith negotiation to add resources to expedite batched permit processing, and that the applicant will then have to provide “supplement resources”. This is not new, as a fair number of local governments have, in some cases for decades, retained outside trusted consultants to back fill where the local staff doesn’t have the knowledge or handling capacity to timely move applications through the process. What the industry is likely to claim is that THEY get to pick the consultants that a local government can use to provide that back fill. A more logical and consistent reading will be that if a local government needs help, and has a qualified consultant, the local government will be responsible for picking its advisor, and billing that cost through (without adding any pure profit for the general fund) to the applicant.

SEC. 4. The Legislature finds and declares that the efficient approval of broadband permit applications is critical to the deployment of broadband services, is a matter of statewide concern, and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Section 3 of this act adding Section 65964.3 to the Government Code applies to all cities, including charter cities.

This is a common provision that moves the issue to this statewide ‘solution’.

SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.

Finally, because the law provides that local governments can charge the cost (including outside help) on the applicant to process these batched applications, no state reimbursement is needed.

Okay, that’s it for this first look, and my options about this new law.

Remember that TLF will be producing and making available a deeper dive review into this new law. That MCLE credit program will be available at no charge to local government attorneys…and, heck, to local government planners as well.

-Jonathan

The post California’s “Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023” (AB-965) Signed Into Law appeared first on Dr. Jonathan L. Kramer on Wireless Siting & Law.

The FCC’s identified perps are:

Sumco Panama SA,
Sumco Panama USA,
Virtual Telecom kft,
Virtual Telecom Inc.,
Davis Telecom Inc.,
Geist Telecom LLC,
Fugle Telecom LLC,
Tech Direct LLC,
Mobi Telecom LLC, and
Posting Express Inc.

The 27 page FORFEITURE ORDER reads like a who-done-it crime novel.

The fine is applicable jointly and severally so that anyone that the DOJ can tap for ANY OR ALL of the fine sum will get tapped.

I wonder how their extended forfeiture warranty coverage is doing, these days.

For an interesting read, you can OPEN THE ORDER BY CLICKING HERE. *Ioens new window.)

Jonathan

The post “We’ve been trying to reach you about your car’s extended warranty…” appeared first on Dr. Jonathan L. Kramer on Wireless Siting & Law.

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I first met Sophie when she attended a wireless industry meeting in Washington State in very early 2000.  COVID had just taken an early foothold in the Pacific Northwest but little did we know how that would impact us.  After my presentation to the wireless industry on behalf of our government clients, Sophie approached me to dig deeper into my decidedly non-industry views.  We corresponded over a period of eight months, when Tripp May and I offered her a position at the firm.

Why the offer?

Sophie impressed us as a practical and pragmatic attorney and negotiator who, unlike most wireless industry lawyers, DOES have a technology base to understand both the law and the technology that drives law issues.  She made it clear that she was interested in solving problems rather than ‘lawyering up’ a case or matter.  That’s just what we look for in an new associate.

Tripp and I hired Sophie to start in November, 2020 and she provided to be everything we hoped for, and more.  Our clients reward our decision by sending us very kind and thoughtful emails about Sophie’s work on their behalf.  No surprise there given her natural skips and acquired expertise.

In the past few years, Sophie has worked on wireless leasing, cable franchising, fiber optics agreements, and much more.

We’re glad to have Sophie on our bench.

-Jonathan

The post Sophie Geguchadze is TLF’s newest Senior Associate appeared first on Dr. Jonathan L. Kramer on Wireless Siting & Law.

Jonathan

The post Jonathan to Present at NATOA 2021 appeared first on Dr. Jonathan L. Kramer on Wireless Siting & Law.

For details and registration information please click here on on the image below.

The post Dr. Jonathan Kramer to present at the AGL Summit on April 8, 2021 appeared first on Dr. Jonathan L. Kramer on Wireless Siting & Law.

SB556, Senator Dodd’s Bill, if enacted, would extend existing state law impacting government-owned utilities to every City and County in this state.  Then, the proposed law would further extend the existing legislation to make it mandatory that cities and counties (yes, and towns, too) would be required to make every government owned street light and traffic signal available for use by cell phone operators.  The fees that a local government can charge for this imposed-occupancy are only those related to the cost to allow the attachment (one time) and then only reimbursement for the actual costs of the As a bit of icing on the cake, arguably the wireless operator can force the local government to rearrange the light on a street light, or the traffic control lights on a traffic signal to accommodate the cell site.

The law as propose is shown below.  Below that is the map of Senator Dodd’s District and his contact information.  Let him know if you like what he’s proposing…or if you don’t like it!

The post California: Every Municipal Light and Traffic Pole a Cell Site Candidate? appeared first on Dr. Jonathan L. Kramer on Wireless Siting & Law.

Am I going to transition from being a telecom attorney to real estate?

Nope, but you should expect to see me expand in to real estate transactions going forward.

Jonathan

The post Dr. Jonathan Kramer, California Real Estate Broker appeared first on Dr. Jonathan L. Kramer on Wireless Siting & Law.

Direct deposits saves the tenant the payment-related costs of:

1. printing the check,
2. getting it to and from the signer (if hand signed),
3. putting the check in an envelope,
4. running the envelope through the postage machine;
5. getting the stamped envelope in the outgoing mail tray;
6. getting the mail tray to the pick-up point or post office.

For the landlord, electronic payments are quick and relatively easy:

1. You look online or check your statement to see whether the check hit, and when, and log that into your receivables as a payment.

So far, so good, but there’s a real stinker lurking. Read on…

Electronic payments are commonly describe in the lease agreement and commonly involve the landlord executing and sending the tower company a one-page form, often titled something like: “Electronic Payment Authorization” or “Direct Deposit Form”.

The authorization form will contain some legally-operative language, such as the language shown here:  “By signing below, I authorize [the tower company] to make entries to my account at the financial institution indicated on the attached voided check.”

All goes well for a while, and the deposits go in mostly on time.

But then something happens…the tenant and the landlord get sideways over some payment made by the tenant to the landlord, and suddenly there is a WITHDRAWAL from the landlord’s bank account for the amount disputed by the tenant.  Poof.  The money is gone.

Huh? How can that occur?  The landlord says that the direct deposit form was for, well, deposits.

The landlord contacts the bank and says, ‘Huh? What’s this withdrawal by my cell site tenant?!  I NEVER authorized it!!  You, my bank, has to fix this and put the money back into my account!”

The landlord’s banker looks through the account records, finds the electronic withdrawal, then goes into the account signature documents.  The call back  from the banker to to the landlord goes something like this: ‘Sorry, but you authorized your tenant to make account withdrawals.’  Then the banker tells the landlord to look at the clear and unambiguous words in the Direct Deposit Form signed so long ago and forgotten by the landlord.

Sadly for the landlord, the legally-operative words said something quite different from what the landlord understood: “By signing below, I authorize [the tower company] to make entries to my account at the financial institution indicated on the attached voided check.” (Emphasis added.)

Don’t think that an “entry” is a deposit…think about it like in accounting. An account entry can be–and in the case of monthly rent–is a deposit (called a credit in accounting talk).  But also in accounting, an account entry can be a debit (or a withdrawal).

By allowing the tenant to make “account entries” the landlord gave the keys of the account to the tenant.

Not such a hot idea, and one that in the hypothetical case above, would likely force the lawyers to get involved.

Conclusion?  Direct deposits are most often a very good thing.  Account entries? Well … not so much.  Words have legally-effective meanings, even on a simple form seemingly so straight forward and clear.  Fixing the particular problem shown in the example here, which used real words from a signed document we reviewed, is easy once you understand the issue and know how to resolve it to protect the landlord.

When in doubt, and most often even if you’re not, it usually pays to reach out to an attorney who has a practice related to your issue.  As the old Ben Franklin quote starts, “A stitch in time…”

Jonathan

The post Cell Site Landlords: When is an Entry also an Exit? appeared first on Dr. Jonathan L. Kramer on Wireless Siting & Law.