Cal Supreme Court Rules for San Francisco against T-Mobile in PROW Case

Today the California Supreme Court ruled in favor of the City and County of San Francisco, and against T-Mobile and its wireless industry co-parties in a case regarding how a local government can manage the public right of ways in this state.

The decision has, as of this writing, been out for only 15 minutes, so instead of trying to summarize 24 pages, I’ll let you simply start by reading the decision, which is here: S238001.

Our deep-dive analysis will be posted here shortly.   For now, however, Lory Kendirjian (our senior paralegal) reminds me that this decision also settles the question about whether a local government can consider aesthetics when evaluating a permit request subject to PUC Section 7901 (see: Sprint PCS Assets v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716.  In that case, the Ninth Circuit ruling on California state law found no conflict between section 7901 and PVE’s local ordinance that conditioned permit approval on aesthetic considerations. (I served as the technology expert in that case, which was argued by Javan Rad, now Senior Deputy Attorney in the City of Pasadena.)

Congratulations to William Sanders and Erin Bernstein of the CCSF’s City Attorney’s Office, who tried the case on behalf of San Francisco (with yours truly as the City’s wireless expert witness), and to Jeff Melching of Rutan and Tucker.

Jonathan

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TLF Releases new Small Wireless Facilities Supplemental Application

Big news: TLF has released v. 1.03 of our new Small Wireless Facilities (“SWF”) Supplemental Application form.  This form is available for free to any local government that would like to get a handle on how to better process the deluge of SWF applications hitting right now, and for effectively comply with the (crazy) new FCC rules that went into effect on 1/14/19.

Bigger News: In conjunction with the release of the new SWF SUP-APP, I’ve prepared a short video to walk local governments through how to adapt then use the new form.

I know that other consultants will steal borrow the form for their own clients and pass it off as their own work.  That’s okay since (a) it’s going to happen anyway, and (b) the point is to help local governments who will be hammered by SWF applicants.

To visit the Information and Download page, CLICK HERE.

Enjoy, and please email me copies of the form as you modify it.  I’ll take any good ideas and incorporate them into newer versions of the form.

Jonathan

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House and Senate to FCC: Did the Commission REALLY…

Yesterday (1/30/19) Senators Dianne Feinstein (D-CA) and Richard Blumenthal (D-CT) wrote to FCC Chairman Pai asking for information regarding allegations that FCC staff tried to game the federal judicial system in connection with the current litigation over the Commission’s 5G orders.

The letter opens with the following:

Dear Chairman Pai,

As you know, reports have surfaced that Federal Communications Commission (FCC) staff may have encouraged wireless carriers to file suit against the September 2018 FCC rule on 5G small cell deployment. It has been alleged this was done with the goal of moving litigation out of the Ninth Circuit. What’s worse, there are also allegations that FCC staff may have implicitly threatened licensees that were not helpful. If true, this represents an unprecedented level of coordination between an oversight agency and the entities it regulates for the express purpose of preventing a federal circuit court’s review. We therefore ask you provide additional information about these cases and the FCC’s role in them.

This Senate inquiry follows a 1/24/19 letter to Chairman Pai from the House’s Committee on Energy and Commerce’s Chairman, Frank Pallone, Jr., (D-NJ) and the Chairman of the Subcommittee on Communications and Technology, Mike Doyle (D-PA). That letter included the following:

It has come to our attention that certain individuals at the FCC may have urged companies to challenge the Order the Commission adopted in order to game the judicial lottery procedure and intimated the agency would look unfavorably towards entities that were not helpful. If true, it would be inappropriate for the FCC to leverage its power as a regulator to influence regulated companies to further its agenda in seeking a more friendly court.

Both letters start to dig into what appear to be the hallmarks of a captured federal agency; an agency that may have lost its independence, objectivity, and duty to protect the public in favor of coordinating and protecting with those the agency is charged with regulating, here wireless, telephone, and cable firms.

The allegations, if true, are likely to shake the FCC from top to middle, and also impact (read: scare) other regulated-friendly federal agencies.

The two letters are linked below:

1/30/19 Senate Letter to FCC Chairman Pai

1/24/19 House Letter to FCC Chairman Pai

-Jonathan

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HUGE! 10th Cir Denies Stay in FCC Case then Xfers to 9th Cir.

In the ongoing sage of local governments trying to bring sense back to cell siting after the FCC’s industry-driven September Small Wireless Facilities Order, the 10th Circuit today ORDERED that (a) it would not issue a stay of the FCC’s order, but then (b) ORDERED the case to be transferred to the 9th Circuit!

This is HUGE, and places the case exactly where it should have been heard in the first place.  The denial of the stay was by a summary action, without giving a basis.  The transfer order clearly explained why the case properly belongs in the 9th Circuit.

I’ve attached both orders below.

-Jonathan

__190110 Order Denying Motion for Stay

__10th cir order granting transfer to 9th cirFacebooktwitterredditpinterestlinkedinmail

NOKIA’s Phil Twist: “Choose the red pill.”

RCR wireless has an interesting and quite telling post out today (11/30/2018) quoting Mr. Phil Twist, VP of Network Marketing for Nokia.  Speaking at an event titled, “The Great Telco Debate” in London,

Channeling the original Matrix movie blue pill/red pill scene, Mr. Twist is reported to have said that “[t]he US operators have taken the red pill – they’re building networks, even while they’re unsure of the business case. Because one is building, they’re all building.”

Regrettably, assuming Mr. Twist is not twisted in his assessment, then we’re seeing a massive infrastructure invasion into the public rights of way throughout the U.S. on a wing and a prayer.

Perhaps a better quote would have been to channel this fantasy movie clip: If you build it…

Both movies were dark fantasies.  What one will be closer to reality?

JonathanFacebooktwitterredditpinterestlinkedinmail

Can. You. Throttle. Me. Now?

By now you’ve probably read published stories or seen the news videos about Verizon Wireless throttling (throttle) data rates of firefighter phones in California.  See, for example, this Ars Technica article.

Some call this a net neutrality issue.  I don’t see it that way.

I see this as a public safety issue, and ripe for a thoughtful California legislator to step up and introduce legislation to establish a statewide public safety users database (“PSUD”) that would contain the phone numbers of all registered public safety user (firefighters, police, etc.).  Let’s lasso the carriers to get them back under the mantle of public safety.

Plan A: The legislation I envision will prohibit a wireless carrier–any wireless carrier–from throttling data rates or disconnecting a registered user during federally or state-declared emergencies once notice is sent to the carriers by a designated state office.

I suspect the wireless carriers will say that they can’t do this for one reason or another, or they are somehow unable to act quickly on anti-throttle notices sent from state officials, thus the legislation should not move forward.

If the carriers do say it can’t be done as I’ve set out in Plan A–really, when they say it–I have a splendid Plan B:  The alternative version of the law I envision will prohibit throttling or data caps for any registered device at any time, and require that the carrier send no fewer than 5 texts over 10 calendar days, plus a 10-day letter, warning in advance of account cut-off.

If the carriers are truly concerned about public safety–which sometimes I wonder–then they should embrace legislation like I propose.

It’s about life and property safety, not data caps and profit.

I’ll be talking with some friendly California legislators about this legislative initiative.

-Jonathan

PS: Perhaps the California State Firefighters Association and the California Peace Officers Association #CalPeaceOfficer would like to cooperate to add this to the top of their legislative agendas.  I suspect they might like my little initiative.  I’d be happy to help them write the draft legislation with real teeth at no charge. -jlk

PPS: It seems like this idea would be easy to spread to other states for adoption.  Hummmm.  -jlkFacebooktwitterredditpinterestlinkedinmail

Coronado, California Adopts New Wireless Ordinance

Last night, August 21, 2018, the City of Coronado, California adopted a new wireless ordinance. In fact, it was their first wireless ordinance, and it focuses on 5G and beyond.

During the hearing, I presented a short PowerPoint presentation on 5G and why the wireless industry moves in seemingly mysterious ways.

If you’d like to learn about the new ordinance, and listen to my lecture to and discussions with the City Council, please visit:  https://coronado.12milesout.com/meeting/council/8-21-2018  and select item 8b.

JonathanFacebooktwitterredditpinterestlinkedinmail

The Wireless Sky is Falling!

The wireless sky is NOT falling!
The Wireless Sky is Falling! The Wireless Sky is Falling…

Yes, the wireless sky is falling according to various firms who want landlords to hire them to sell their Sprint leases.  Our landlords are receiving letters and emails from various firms wanting to buy Sprint leases, with justifications such as:

‘Once the T-Mobile-Sprint deal is done, the value of your Sprint Site will drop to $0.’

‘Sprint will lay off 70+% of its staff.’

‘Sprint will shutter half of its cell sites.  Yours will be one of the sites they shutter.’

‘Your Sprint site is surrounded by [insert any number] of T-Mobile sites.’

‘You’ve got a narrow and closing window to act before the FCC and DOJ green-light the merger.’

Once they have set their end-of-the-world table, these firms then suggest that now is the time to hire them to help sell the soon-to-be-worthless Sprint lease.

Wait, I don’t get it…

Why would any buyer be interested in buying a worthless site owned by a company that’s going to shed the better part of its staff, and shut down half of its sites?

Yes, why indeed!?

If history is any indicator, post-merger (by a couple of years), there will be some site shut downs, but many will survive. Not all the sites to shutter will belong to Sprint…some T-Mobile sites will be goners, too.

The lowest hanging fruit for shut downs will be where Sprint and T-Mobile are collocated on the very same tower or property.  Next will likely Sprint and T-Mobile sites nearby to each other (blocks).  Finally, sites further separated will get the evil eye.

Expect companies like MD7, BlackDot, and other so-called site lease optimizers to be pulled in to push landlords to cut their rents, extend their terms, and other fun stuff (wait for: ‘Hello landlord…Now that T-Mobile and Sprint have merged, they have too many sites. T-Mobile is considering terminating your lease, but if you give them a big fat kiss in the way of a long-term rent reduction, an elimination of other terms favorable to you, they’ll stay…’).

If the T-Mobile/Sprint deal is done, we’re in for interesting times.  Before that, however, don’t get suckered into selling your Sprint (or T-Mobile) lease until you get competent counsel that help you understand your legal position.

Competent counsel does not come dressed like a little bird, nor does competent counsel cry out that the wireless sky is falling.

Jonathan

 

 

 

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Most Favored Wireless Lessee Clause?

One of the big wireless carriers has added an interesting new ‘standard provision’ in its lease template.  It’s a clause that makes that particular lessee the ‘most favored lessee’ over the decades-long life of the agreement.

Some of you will recognize this type of contract provision as a Most Favored Nation (“MFN”) clause.

In the wireless leasing context, a wireless landlord granting this MFN might be called a “Most Flagrant Numskull.”

I’ll review the meat of the MFN clause. Then I’ll you how we’re handling this odious little clause for our wireless landlord clients.

Paraphrased, major elements of the MFN cause require the Lessor to guarantee to its wireless carrier tenant that if the Lessor does any subsequent lease deal…not just for wireless…with another entity at the same property — or even at an entirely different property anywhere in the world — then the wireless tenant gets to decide whether they want those same better deal points

The elements of the MFN include rent, contract benefits, as well as the terms and conditions for any deal the lessor does for identical or even similar land deals.  Essentially, every deal point comes into play. The MFN also requires that the landlord timely disclose every one of  those lease deals to the carrier, but the carrier reserves the right to reject any or all of the other terms if it doesn’t like them.

Oh, yes, through the MFN, the carrier reserves the right to independently dig into every deal the landlord does. Arguably, this means that any type of similar deal the landlord does anywhere else in the world has to given to the wireless tenant to pick and choose to see if they want also, some, or none of the terms retroactively.

Also, there’s no limit to the number of times or deals that the MFN can be used to favorably tweak its wireless lease.

What’s a landlord to do?

Well, there are two obvious answers to the MFN issue.

The answer I particularly like is to AGREE to the MFN clause and…

wait for it… wait for it…

…the landlord requires that the carrier mirror the MFN clause so that the wireless carrier has to give the very same bundle of rights to landlord. Yeah, like that’s going to fly with the carrier.

Okay, you can probably guess the better second answer: We recommend our clients strike the clause and tell the carrier to keep their hands inside their own ride at all times.

Do I chide the wireless companies for overreaching clauses like this?  Of course not.

The legal duty owned by management to its wireless company shareholders is to enrich the shareholders regardless of the legal and financial devastation they might do to the unknowing landlord.  There are no morals involved here. It’s simply the way of business.

It’s also why we enjoy working with wireless site landlords to point out the obvious and not-so-obvious legal landmines buried in wireless site leases.

Jonathan

(Base photo: By Reedhawk – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=36811331)

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