Category: Legal

Congress Gifts Wireless Industry with By-Right Collocation…Or Does It?

Posted on by Dr. Jonathan L. Kramer

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 for his signature.  It seems likely that the President will sign the Act.

The California Wireless Association said about the Act in an email bulletin to its members (of which I am one): “In effect, Section 6409 exempts from local discretionary review collocations and modifications that do not substantially increase the size of the tower.”  Well, that’s one view, but it’s not complete, and it’s not that simple.

Let’s review….

Congress’s Election Year Gift to the Wireless Industry

As I discussed in a prior post, the Act contains the following significant gift to the wireless industry, grafted on to this Act from its former home in the stalled S.911 :

Sec. 6409. WIRELESS FACILITIES DEPLOYMENT

(a) FACILITY MODIFICATIONS.-

(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.

Since it appears very likely that Sec. 6409 will become the law of the land, let’s take some time to dissect it for impact, defenses, and results.

What Types of Sites Are Protected by Sec. 6409?

Sec. 6409 does not on its face apply to any structures other than existing wireless towers.  The Act does not even define what constitutes a “wireless tower.”

Absent some local government code definition to the contrary, a building with an existing cell site on it is not a wireless tower; a park light standard with an existing wireless cell site is not a wireless tower; a church steeple with a cell site inside it is not a wireless tower; a billboard with an existing wireless site is not a wireless tower; a mono-cross is not a wireless tower.

In reality, relatively few physical structures should be called a “wireless tower” (especially by governments).

While it’s difficult to argue that monopoles are not wireless towers, if the monopole has a light standard on it located in a parking lot, and the monopole was put in to add wireless to a prior existing light standard, then it is straight-forward to argue that the monopole with the light standard is not a wireless tower.  It was a replacement for a light standard that was not a wireless tower, and the original use was preserved.  Yes, this is the wireless equivalent of “Who’s on First?! Who! Who?”

Let’s turn to the Act’s coverage of a “base station” (no pun intended).  The term “base station” is also not defined in the Act.  Since the term can mean different things depending on which side of the planning counter you normally stand, let’s take a closer look.

If the term “base station” means equipment cabinets, and a site presently has two cabinets, then doubling the number of cabinets to four would certainly be a substantial change in the physical dimensions of the base station.  If the existing “base station” is contained within a closed room or building, then doubling the number cabinets of the base station might not be a substantial change.  Context is important.

Since site configurations differ from site to site, carrier-to-carrier, and location-to-location, we can’t say in knee-jerk fashion whether an expansion of 5% of 50% of a wireless tower or base station is a substantial change in the physical dimensions for the purposes of the Act.  This will take a case-by-case reasoned analysis to reach a sound answer.

“Or” v. “And” Makes a Big Difference

Next, let’s look at how Sec. 6409 requires we evaluate a change in physical dimensions.

Sec. 6409(a)(1) does not say, ‘…a modification of an existing wireless tower and base station…’  Rather, it bifurcates the analysis when it says, in fact, a “…modification of an existing wireless tower or base station…” (Emphasis added).    This one word change unambiguously means that if a collocation proposal comes in for an existing wireless tower, then the government should conduct a two prong analysis.

The first prong is to determine whether the proposed expansion on the wireless tower will “substantially change the physical dimensions of [the existing] wireless tower.”  The second prong asks whether the proposed collocation will “substantially change the physical dimensions of the [existing] base station.”

If the answer to either prong is yes, then the collocation would fall outside of the rights and protections granted under Section 6409.  That said, then the government must still consider whether the project is one that should be permitted, conditioned, or barred under the local code governing wireless site installations.

An “Eligible Facilities Request” — Not As Obvious as it Might Seem

Turning to Section 6409(a)(2), now let’s look at what constitutes an “ELIGIBLE FACILITIES REQUEST.”

The term ‘eligible facilities request’ has three distinctly separate meanings, all of which are important to governments.  The first is that it means any request for modification of an existing wireless tower or base station that involves “collocation of new transmission equipment.”  This seems to be the main thrust of the Act, but it is interesting that the collocation of new transmission equipment does not mean the collocation of a new carrier or carriers on an existing tower.  There may be some governments that look at the plain text and say that this subsection (a)(2)(A) only applies to the existing occupant(s) on the real wireless tower who are, for themselves only, collocating new transmission equipment.

Subsection (a)(2)(B) makes it clear that an existing carrier on the wireless tower may by right remove its transmission equipment on the tower or at the base station.  Governments will like this section, since it will result in a reduction in the visual impact of a wireless site.

Subsection (a)(2)(C) makes it clear that an existing carrier on the wireless tower may by right replace its existing transmission equipment.  Again, size matters, if the replacement will be substantially larger or smaller compared to the existing transmission equipment.

NHPA & NEPA: Status Quo

I’m not going to spill too much e-ink over (a)(3).  The status quo is maintained and the as the FCC’s duties under the National Historic Preservation Act or the National Environmental Policy Act of 1969 are reaffirmed.

Recommendations to Governments

As a government wireless planner, you are about to have gleeful carrier reps–and even more gleeful carrier attorneys–telling you that Sec. 6409 makes your job soooo much easier now: Just say ‘yes’ to every collocation and your government won’t get sued.  They might even suggest that you tell the public that Congress is to blame for all this, rather than the carrier, right? Well, no, it’s not that easy for you, the carrier, or the public.

A careful, informed, rational project analysis is absolutely required to insure that governments are not granting collocations “by right” where no “by right” truly exists.

Start by looking at your wireless ordinance.  (You do have one, right?)  Does your ordinance contain a provision that actually defines a “wireless tower”  or a “tower” or a “base station”?  You are certainly going to want to review and likely tighten up those definitions to limit undesirable spillover.  For example, if you define wireless tower to mean every wireless site, then your definition will need to be changed pronto!

Use a detailed wireless application form (you should be using one, anyway).  Don’t blow your FCC Shot Clock deadlines because you didn’t use a detailed application, and you didn’t review the complete application at the time it hit your planning counter.  Consider requiring wireless applicants to make appointments to tender applications so you’ll block enough time to review project at the counter.  If the application is incomplete, make sure the applicant leaves with an incomplete letter at the time so that the shot clock doesn’t begin to run.

Sec. 6409 does not preempt a local government’s right (and some think a duty) to evaluate current and planned emissions for compliance with the FCC’s standards at 47 C.F.R. § 1.1307 et seq. and FCC OET Bulletin 65.  If the the by-right collocation project won’t comply with the FCC rules–and some don’t as proposed–then don’t be bullied into permitting a non-compliant project.

Especially consider legal non-confirming wireless towers and sites (a site that was legal under local law at the time it was constructed, but would not be permissible today under current local law…think “ugly monopole”).  The Act’s language would suggest that a government cannot deny a proposed collocation on a legal non-conforming site. Your government may well want to amend your local code right now to indicate that other than maintaining or replacing existing antennas with like sizes and shapes, any other material changes would be deemed to be ‘substantial’ for the purposes of collocation under the Act.  I’m sure that a lot of wireless industry attorneys will disagree, but most governments tolerate legal non-confirming uses only so long as they are not exacerbated or extended in term.

Speaking of term, some states (like California) permit local government to limit the length of wireless site permits to some term of years.  In California, the shortest term is normally 10 years, but modifying by expansion a legal non-confirming site would likely fall within the exception permitted in the Government Code (I helped write this section of the California Government Dode…call me…I’ll tell you more).

If you face granting a mandatory collocation on a wireless site that will term out, say, in 7 years,  then you’ll want to term-limit the collocation permit to expire at the same time as the underlying site permit.  This will be especially important in legal non-confirming settings.

I’m sure that some governments will use the enactment of Sec. 6409 to justify adopting a siting moratorium.  It may well be justified given the potentially drastic impacts the new law will have on a major sector of wireless siting.  We’ll have to wait and see.

Recommendations to the Industry

Congratulations industry, you’ve earned a well-funded victory at Congress!

Now, don’t overstate the scope of your new rights when dealing with governments.

Please don’t say that diesel generators to provide standby power are somehow “transmission equipment.”  It won’t fly, and you won’t get points for creativity, either.

Don’t make hollow threats of law suits, especially over technicalities such as trying to torture and graft favorable current meanings from ordinance terms created years ago for a substantially different purpose.  You’ll find enough legitimate bad-actor cases to develop case law that will rationally guide governments…and carriers…how to use the new law as a surgical tool where truly needed, rather than a blunt force instrument to inflict trauma simply for trauma’s sake.

Remember that governments may consider using your blunt force instrument threats to justify a siting moratorium for up to a year, or even longer.  Is that what you really want?

Work with governments to ease into this paradigm shift.  You’ll both be happier, even if the public won’t be.

Please (don’t) let the games begin.

___________________________

About the author:

Jonathan Kramer is a California-based radio frequency engineer, wireless siting advisor, and an attorney working primarily on behalf of local governments and wireless site landlords around the U.S.  Jonathan notes that the opinions expressed in this article are his own, and do not necessarily reflect those of any of his clients, friends or foes.  Kramer’s main website is TelecomLawFirm.com.




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As LightSquared Fades, What of Sprint?

Posted on by Dr. Jonathan L. Kramer

As you likely know, the NTIA’s Assistant Secretary for Communications and Information, Lawrence E. Strickling  gave LightSquared a big, fat, wet Valentine’s day kiss when he wrote to FCC Chairman Genachowski saying, “…we conclude that LightSquared’s proposed mobile broadband network will impact GPS services and that there is no practical way to mitigate the potential interference at this time.”

You can read the full letter, which goes downhill from the quote above, by clicking on this link:  NTIA Letter to FCC Regarding LightSquared: Feb. 14, 2012.

While everyone else is talking about LightSquared, I’m wondering about the impact of the likely LightSquared disappearance from the arena on Sprint.  Just last June, Sprint and LightSquared announced that they had entered into a 15-year agreement for Sprint to promote LightSquared as its 4G solution (hey, does anyone remember a company called ClearWire who was promoted by Sprint to be its 4G solution?  I’m just ask’n…).

Under the Sprint deal, LightSquared was to pay $9 billion dollars and give Sprint another $4.5 billion in credits for LTE and satellite services.  Shortly thereafter, Sprint kicked the Network Vision project into high speed.

Side note 1: Network Vision, for those of you who have not yet seen the vision, ahem, is Sprint’s project to replace its BTS cabinets that do one thing on one band with shiny new BTS cabinets that can be easily adapted to provide multiple services on multiple bands at the same time.   That’s actually a smart thing from an engineering perspective, but it sure looks like Sprint was betting on LightSquared’s payments to fund a good portion of Network Vision.

Side note 2: The Network Vision project is connected with Sprint’s recently-announced plan to shutter 30,000-ish of its current leases as the new multiband BTS cabinets go in.  Shuttering that many site leases should save Sprint something on the order of $400 million per year, and make cell site landlords wary of entering into new leases that don’t have early termination fees (huh? Your lease doesn’t?  Too bad; so sad.)

So, what’s next for Sprint?  Certainly it has wisely given up on WiMax as a real, long term 4G solution.  It looks like everyone agrees that LTE is the real answer, so the sinking of LightSquared’s ship is hardly likely to re-float ClearWire’s boat in Sprint’s eyes (or any other sets of eyes for that matter).  Since Sprint recently missed out on the “Buy Your Next Band From The Cable TV Guys” deals, its even farther down the spectrum rabbit hole.  Sprint needs frequencies, and it needs them last week.

This brings me full-circle back to an earlier blog post, from last September, when I mused on the idea that Sprint and T-Mobile would make a mighty fine look’n couple, and I even worked up a possible wedding announcement:

See: SprinT-Mobile?

T-Mobile has kept a nice dowry of cash (and better, spectrum) from when the DOJ forced AT&T to leave T-Mobile at the alter.  So like Sprint, T-Mobile has a pressing need to get married.  If not to each other, then to others, but marriages are on the horizon.

See you at the wedding(s).  I’ll be at the bar.

Jonathan

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Wireless Industry Trying Again to Force Unregulated Collocation

Posted on by Dr. Jonathan L. Kramer

You might think that the Payroll Tax Bill being hashed out in the Conference Committee would deal with, well, payroll taxes. Alas, you’d be wrong.

The wireless industry is trying very hard to insert language into the final version of the Bill that would strip state and local governments of the ability to control modifications to existing cell sites.

Specifically, the draft conference committee report contains the following provision:

SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.
(a) FACILITY MODIFICATIONS.—

(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 [the] purposes of 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.—Nothing 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 language above is terribly flawed as it uses terms that are imprecise at best, and downright confusing at worst: “…substantially change the physical dimensions of such tower or base station…” Huh? This means that a collocation could substantially alter the aesthetics of an existing site outside of local control so long as the collocation does not substantially change to physical dimensions of the tower or or base station.

The proposed language would also remove the ability of a government to deny a collocation on a legal non-conforming site (a site that was legal under local law at the time it was constructed, but would not be permissible today under current local law). Ugly monopoles will get uglier with the addition of new antennas that do not “substantially change the physical dimensions of such tower” and that’s just the way it is.

Would anyone like to bet a law suit on what “substantially change” means?

If you believe that the language in the conference draft is offensive to local control of the rational deployment of wireless facilities designed to promote community aesthetics, now is the time to act. Really, now.

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FCC Shot Clock Affirmed by 5th Circuit

Posted on by Dr. Jonathan L. Kramer

Yesterday, the 5th Circuit Court of Appeals denied the FCC Shot Clock appeal promoted by the City of Arlington, Texas and the City of San Antonio, Texas. For the foreseeable future, the Shot Clock will remain with us. Here is the decision: CITY OF ARLINGTON, TEXAS; CITY OF SAN ANTONIO, TEXAS v. FCC.

Although the Mayan Calendar predicts the end of the world on December 21st, 2012, it seems unlikely that the FCC Shot Clock will be the cause. It also seems unlikely that a petition for Certiorari will be favorably reviewed by the U.S. Supreme Court given the nature of the ruling, and the lack of a split among the various Circuits.

This appeal grew out of the FCC’s adoption of its wireless tower siting Shot Clock rule in 2009 (click here to read the FCC’s Shot Clock Declaratory Ruling) setting deadlines for governments to process to a decision wireless site applications “within a reasonable period of time” (see 47 U.S.C. § 332(c)(7)(B)(ii).

In its ruling, the FCC interpreted Congressional intent regarding § 332(c)(7)(B)(ii) to define the reasonable time as being 90 days for a collocation site, and 150 days for a new site and other types of applications. 47 U.S.C. § 332(c)(7)(B)(v) requires that when there is a failure to act on an application within the applicable time period, the aggrieved party (usually the carrier) should file a suit with a court of competent jurisdiction within 30 days and that “[t]he court shall hear and decide such action on an expedited basis.”

So, what does this mean for local governments? Likely not too much for now.

Most local governments, since the Commission’s adoption of the Ruling, have taken the order in stride and tried to comply. Most carriers have done the same thing. Most times, when the 90 or 150 day clock was about to run out, the carrier and government would enter into a tolling agreement (by mutual agreement to stop the Shot Clock where it was, so that everyone would have some breathing room to keep working on a project).

Why are tolling agreement needed? Even the Commission recognized the value of such agreements when it said,

We conclude that a rigid application of this cutoff to cases where the parties are working cooperatively toward a consensual resolution would be contrary to both the public interest and Congressional intent. Accordingly, we clarify that a “reasonable period of time” may be extended beyond 90 or 150 days by mutual consent of the personal wireless service provider and the State or local government, and that in such instances, the commencement of the 30-day period for filing suit will be tolled.

(FCC Shot Clock Order @ 49)

As someone who reviews and processes wireless site applications for many local governments, the most important clock is not 90 or 150 day clocks; it’s the first 30 day ‘application deemed complete’ clock.

The FCC said of this first 30 days,

[A] review period of 30 days gives State and local governments sufficient time for reviewing applications for completeness, while protecting applicants from a last minute decision that applications should be denied as incomplete. Accordingly, we conclude that the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days only if that State or local government notifies the applicant within the first 30 days that its application is incomplete.

(FCC Shot Clock Order @ 53)

Some states, including California, already provide for an initial 30 day review period for application completeness (in California see Gov. Code § 65943). Unlike the California law, however, which ‘resets’ the clock back to zero if an application is returned incomplete within the first 30 days, the FCC shot clock simply stops where it is at the time the incomplete notice is issued. If the local government takes 25 days to review a project for completeness, and returns the application as incomplete on that day, it only has 5 more days to review the project when resubmitted.

Because the FCC first 30 day clock is the toughest to deal with, local governments will be well-served to create carefully-crafted and very detailed applications that make incomplete submissions easy to detect. For an example of a wireless application form that is both detailed and highly structured, take a look at the one I’ve maintained for nearly a decade and which is used in one form or another by various jurisdictions around the country: CLICK HERE.

PRACTICE TIP

I believe that local governments will be best served by a combination of a carefully-crafted wireless siting application facilitating an easy completeness check, coupled with the requirement that wireless site applications only be filed by appointment where legally permissible.

Taking in and reviewing a complex wireless siting project and the underlying thorough siting application and data can take an hour or more.

By requiring appointments, a government planner can allocate sufficient time to take in and review the application at the time it hits the counter. Any facial omissions or errors can be identified during the intake, and the planner can immediately log in the project and simultaneously issue the applicant with an incomplete letter at the same time. This approach will blunt the worst impacts of the 30-day clock by never allowing it to start for facially incomplete or incorrect applications.

♫ ‘A siting we shall go; a siting we shall go…’ ♫

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NextG Networks sold to CrownCastle

Posted on by Dr. Jonathan L. Kramer

This sale marks CrownCastle’s undisputed dominance of the Distributed Antenna System (DAS) market…for now. My prediction, however, is that we are seeing the peak of the DAS market, and that cable TV operators will become the new DAS leaders as they deploy wireless carrier services connected to their existing cable plant backhaul networks. More on this in a couple of days.

As for this sale, don’t forget that NextG is the owner of the basic patents in this field, which presumably will now be controlled by CrownCastle. Also, don’t forget that earlier this year CrownCastle purchased NewPath Networks, another major DAS provider (and a target of a NextG patent infringement lawsuit…I guess that’ll go away now.)

HOUSTON, Dec 16, 2011 (GlobeNewswire via COMTEX) — Crown Castle International Corp. CCI -2.21% announced today that it has entered into a definitive agreement to acquire NextG Networks, Inc. (“NextG”) for approximately $1.0 billion in cash (subject to certain adjustments). NextG, the largest provider of outdoor distributed antenna systems (“DAS”), currently has over 7,000 nodes-on-air and a further 1,500 nodes under construction. In addition, NextG has rights to over 4,600 miles of fiber. DAS is a network of antennas connected by fiber to a communications hub designed to facilitate wireless communications services for multiple operators. The acquisition will expand Crown Castle’s portfolio of DAS, providing additional wireless coverage and capacity solutions to customers beyond those areas traditionally served by towers. The acquisition is expected to close in the second quarter of 2012. Crown Castle expects to fund the acquisition with debt financing.

“Increasingly, we believe that small-cell architecture, such as DAS, will be an important complement to traditional macro tower installations,” said Ben Moreland, Crown Castle’s President and Chief Executive Officer. “We are very pleased with our anticipated acquisition of NextG, which furthers our ability to extend wireless infrastructure beyond those areas traditionally served by towers, thereby broadening our service offering in this growing market and positioning us to benefit from the continued demand for wireless data. We expect the impact to recurring cash flow per share from the contemplated acquisition and related expected debt financing to be approximately neutral at closing. Further, we believe this acquisition increases our growth rates and is accretive to long-term recurring cash flow per share.”

“Our agreement today is testament to the market leadership NextG has achieved over the past few years and to the increasingly critical role small-cell solutions, including DAS, have played and will play in the future to ensure reliable and comprehensive wireless infrastructure,” said Steven Moskowitz, NextG’s Chief Executive Officer. “I am proud of all that our employees have accomplished. We have significantly expanded our footprint, broadened our customer relationships, improved our network deployment efficiency, and continuously upgraded our technology and customer service. Our technology solution will be additive to Crown Castle’s industry-leading offering, and I am confident that NextG and its employees will be strong contributors to Crown Castle’s success for many years to come.”

Consistent with Crown Castle’s focus on the top 100 BTAs in the US, over 90% of NextG nodes are in urban and suburban locations, with 80% in the top ten US metropolitan areas, including New York, Los Angeles, Chicago and Dallas Fort Worth. The NextG assets are expected to provide significant growth, as they currently average only 1.25 tenants per network. Following the contemplated acquisition, Crown Castle expects to be the largest independent DAS operator in the US, with approximately 10,000 nodes and 26 venues in operation or under construction.

NextG is to be acquired from a group of investors led by Madison Dearborn Partners, a private equity firm. Madison Dearborn, Accel Partners, Redpoint Ventures and Meritech Capital Partners purchased NextG in 2009. NextG is being advised by Deutsche Bank Securities Inc., Kirkland & Ellis LLP and Kelley Drye & Warren LLP. Crown Castle is being advised by Cravath, Swaine & Moore LLP.

About Crown Castle

Crown Castle owns, operates, and leases towers and other infrastructure for wireless communications. Crown Castle offers significant wireless communications coverage to 92 of the top 100 US markets and to substantially all of the Australian population. Crown Castle owns, operates and manages over 22,000 and approximately 1,600 wireless communication sites in the US and Australia, respectively. For more information on Crown Castle, please visit www.crowncastle.com .

The Crown Castle International Corp. logo is available at http://www.globenewswire.com/newsroom/prs/?pkgid=3063

About NextG Networks

NextG Networks is a market leader in outdoor DAS and other small-cell solutions, using fiber-fed systems to operate carrier-class wireless networks. With its proprietary fiber-optic architecture and expertise in public way access, NextG designs, permits, builds, operates and manages low power wireless networks. NextG’s distributed systems are protocol-neutral, enabling them to support multiple wireless carriers, services and technologies. NextG provides transport and backhaul services to wireless service providers over discrete, multi-frequency, scalable fiber networks that improve wireless service coverage, capacity and performance. With main offices in Boston, MA, and Silicon Valley, CA, NextG operates wholly-owned regional subsidiaries throughout the United States. For information, visit NextG Networks online at www.nextgnetworks.net .

About Madison Dearborn Partners

Madison Dearborn Partners, based in Chicago, is one of the most experienced and successful private equity investment firms in the United States. Since MDP’s formation in 1992, the firm has raised six funds with aggregate capital of over $18 billion and has completed approximately 120 investments. MDP invests in businesses across a broad spectrum of industries, including basic industries; consumer; financial services; health care; and telecom, media and technology services. Madison Dearborn has a long and successful track record of wireless-related investments, including MetroPCS Communications, Asurion, Omnipoint Corporation, Alaska Native Wireless, Clearnet Communications, Nextel Communications, Nextel Partners and Weather Investments. Other Madison Dearborn investments in the telecom, media and technology services space include Fieldglass, XM Satellite Radio, Intelsat and Univision Communications. For more information, please visit www.mdcp.com .

Cautionary Language Regarding Forward-Looking Statements

This press release contains forward-looking statements that are based on Crown Castle management’s current expectations. Such statements include plans, projections and estimates regarding (i) the timing of closing of the contemplated acquisition of NextG (“Contemplated Acquisition”), (ii) funding of the Contemplated Acquisition, (iii) the utility and role of DAS and small-cell architecture, (iv) the impact of the Contemplated Acquisition on Crown Castle’s success and operating results, including growth rates and recurring cash flow per share, (v) growth opportunity of NextG assets, and (vi) Crown Castle’s relative position in the DAS market following the Contemplated Acquisition. Such forward-looking statements are subject to certain risks, uncertainties and assumptions, including prevailing market conditions and other factors. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those expected. More information about potential risk factors that could affect Crown Castle’s results is included in our filings with the Securities and Exchange Commission. The term “including,” and any variation thereof, means “including, without limitation.”

This news release was distributed by GlobeNewswire, www.globenewswire.com

SOURCE: Crown Castle International Corp.

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FCC’s New Rules Regarding Migratory Birds

Posted on by Dr. Jonathan L. Kramer

Turkey Vultures in Pittsburg, California find this CrownCastle tower very pleasant, indeed!Turkey Vultures in Pittsburg, California

The FCC has recently released new rules requiring public notice and and opportunity to comment on new Antenna Structure Registration (“ASR”) applications. These new rules, released on December 9th, 2011 are explained by the Commission in the following three paragraphs:

1. In this Order, we take procedural measures to ensure, consistent with the Commission’s obligations under federal environmental statutes, that the environmental effects of proposed communications towers, including their effects on migratory birds, are fully considered prior to construction.  We institute a pre-application notification process so that members of the public will have a meaningful opportunity to comment on the environmental effects of proposed antenna structures that require registration with the Commission.  As an interim measure pending completion of a programmatic environmental analysis and subsequent rulemaking proceeding, we also require that an Environmental Assessment (EA) be prepared for any proposed tower over 450 feet in height.  Through these actions and our related ongoing initiatives, we endeavor to minimize the impact of communications towers on migratory birds while preserving the ability of communications providers rapidly to offer innovative and valuable services to the public.

2. Our actions today respond to the decision of the Court of Appeals for the District of Columbia Circuit in American Bird Conservancy v. FCC. 1 In American Bird Conservancy, the court held that our current antenna structure registration (ASR) procedures impermissibly fail to offer members of the public a meaningful opportunity to request an EA for proposed towers that the Commission considers categorically excluded from review under the National Environmental Policy Act (NEPA).  The notification process that we adopt today addresses that holding of the court.  In addition, the court held that the Commission must perform a programmatic analysis of the impact on migratory birds of registered antenna structures in the Gulf of Mexico region. The Commission is already responding to this holding by conducting a nationwide environmental assessment of the ASR program.  The Commission has also asked the U.S. Fish and Wildlife Service (FWS) to perform a conservation review of the ASR program under the Endangered Species Act  (ESA).

3. Today’s action also occurs in the context of our ongoing rulemaking proceeding addressing the effects of communications towers on migratory birds.  In 2006, the Commission sought comment on what this impact may be and what requirements, if any, the Commission should adopt to ameliorate it.  Evidence in the record of that proceeding and in the record compiled for the programmatic EA indicates, among other things, that the likely impact of towers on migratory birds increases with tower height.  Consistent with that evidence and with a Memorandum of Understanding among representatives of communications providers, tower companies, and conservation groups,6 we require, as an interim measure, that an EA be prepared for any proposed tower over 450 feet in height.  We expect to take final action in the Migratory Birds proceeding following completion of the programmatic EA and, if necessary, any subsequent programmatic Environmental Impact Statement (EIS).

As a practical matter, the process required by the FCC is one that occurs only at the federal level.  If someone wants to install a tower that requires an ASR, then their application will go on public record at the Commission with time for interested members of the public to provide their comments.

Please click on the following link to download the FCC’s order (PDF format): FCC-11-181A1-20111209

 

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Is Clearwire Heading to Bankruptcy?

Posted on by Dr. Jonathan L. Kramer

Five days ago I wrote about Sprint effectively casting off Clearwire to sink or swim on its own.  Perhaps I could have said, “sink or sink.”

Yesterday, October 11th, David Sterman (writing at SeekingAlpha.com) strongly suggested in a well-reasoned piece that Clearwire could go bankrupt by next year.

Mr. Sterman’s arguments about a possible (if not likely) Clearwire bankruptcy ring true in my ears.  He said in part,

In 2011, things got messier. Clearwire had always counted on generous financial support from its largest customer, Sprint Nextel (NYSE: S). (Sprint has made serial capital injections in Clearwire and now owns 48%, controlling 54% of the voting stock.) But Sprint has begun to express regret about pinning its 4G hopes on Clearwire’s network. Once Sprint started to make its own 4G network — using the stronger LTE technology — it was almost a matter of time before it announced a public divorce. In a meeting with analysts on Friday, Oct. 7, Sprint said it would soon stop selling phones that work in conjunction with Clearwire’s 4G network. This caused Clearwire’s stock to fall 30% that same day. And the selling may just be beginning…

Mr. Sterman’s focus on the numbers tells the test of the (sad) story:

Where does this leave Clearwire? The company had 7.7 million customers at the end of the second quarter, of which 80% came through Sprint’s enterprise-level relationships. Clearwire has also been pursuing retail customers through its direct sales efforts (at a cost of about $300 per subscriber in marketing expenses). This summer, management spoke of a full-year target of 10 million customers. But now, after Sprint’s  announcement, it’s not clear how Clearwire intends to draw the additional 2.3 million customers. In addition, the retail wireless business is fiercely competitive, which is why other Clearwire partners such as T-Mobile are also looking for an exit strategy.

Well, at least Clearwire’s frequencies will have some value in a buy-out before BK, or to an auction winner in BK.

Go read Mr. Sterman’s post.  Make up your own mind.

(Thanks for John Pestle, Esq. of the Varnum Law Firm  for pointing me to Mr. Sterman’s article.)

 

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TWC Deploys WiFi in SoCal

Posted on by Dr. Jonathan L. Kramer

Coming to (or already arrived at) a utility pole really near you in Southern California…  Time Warner’s new WiFi system!

With $15M of new strand-mounted WiFi access point equipment supplied by BelAir Networks, this new network is apparently intended to provided wide area WiFi coverage in TWC’s service areas.

Presently, TWC’s SoCal deployment is spotty at best, but this is just the beginning:

TWC WiFi So Cal Coverage 2011-09-25So, you’d like to see what the BelAir wireless access points look like installed in SoCal?  Here are two photos taken in Santa Monica by yours truly:

TWC WiFi Access Point on Montana Avenue in Santa Monica
TWC WiFi Access Point on Montana Avenue in Santa Monica
TWC WiFi Access Point on Wilshire Boulevard in Santa Monica
TWC WiFi Access Point on Wilshire Boulevard in Santa Monica

Belair Networks web site points to an interesting piece on the new network posted at FierceWireless: it’s worth reading.

Of course, a few tiny technicalities pop into my head with this deployment.

First, since this is not a cable service, and this is not a personal wireless service, under what regulatory authority does a statewide cable TV franchisee (like, for example, Time Warner) install these wireless access points in the public right-of-way?

Another interesting issue is that I’ve been saying for years that cable operators have to do away with subscriber drop cables.  Is this the door-opener for a last mile (really, last 100 feet) drop cable replacement?  Given that the node locations only cover a couple of blocks around the access point (I’ve checked by measuring signal strength on the SSID “TWCWifi”), the coverage v. capacity trade off looks favorable.

Wireless drops mean no more…well, fewer at least…truck rolls.  This is because in a wireless drop environment most new service installs and disconnects will required the subscriber to pick up and return the box to the cable office.  And without aging cables inside walls going bad, cable service quality should/may should be enhanced.

But wireless drops also require a switched channel selection process for most channels, especially for the lesser viewed channels, coupled with multicasting for the most commonly viewed non-premium channels.

It’ll be interesting to see the reactions of those who are concerned about or opposed to ANY wireless site RF proliferation given the signal strength involved versus the fact that these radios will be in installed residential area front yards, back yards, and side yards just feet from occupied structures.

The cable world is certainly changing…it’s becoming wireless, too.

 

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Actual Complaint: U.S. v. AT&T/T-Mobile

Posted on by Dr. Jonathan L. Kramer

Attached to this post is the antitrust complaint filed today by the U.S. Department of Justice against AT&T Inc., T-Mobile USA, Inc., and Deutsche Telekom AG (T-Mobile’s parent).

Case No. 1:11-cv-01560, assigned to Hon. Ellen S. Huvelle

25 pages.

CLICK ON THE LINK BELOW TO DOWNLOAD THE COMPLIANT IN PDF FORMAT (about 1 MB)

ATT_Tmobile_Complaint

 

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