It’s the Money, Stupid!

In a copyrighted story that appeared in the 8/11/11 edition of Wireless Week, Maisey Ramsay wrote about an AT&T/T-Mobile merger document that appeared on the FCC’s web site, and then disappeared few hours later.

According to Maisey’s story, the interesting AT&T document showed that if the Commission approves the proposed T-Mobile merger, AT&T will expand its high speed data network to rural areas beyond that which they’ve already agreed to serve.

This is an interesting revelation given that the wireless carriers have claimed that its local governments that have stymied their growth through right-of-way regulations that they assert block deployment.

Yeah, right.

Of course we know that those carrier-claims are hollow, and that smaller communities go begging for modern celular/PCS/LTE/AWS services and high speed wireless internet

According to the article:

“AT&T senior management concluded that, unless AT&T could find a way to expand its LTE footprint on a significantly more cost-effective basis, an LTE deployment to 80 percent of the U.S. population was the most that could be justified,” AT&T counsel Richard Rosen stated in the letter.

The company said its merger with T-Mobile would spread the cost of the LTE expansion over a larger revenue base, allowing it to “better absorb the increased capital investment and lower returns associated with deploying LTE to over 97 percent of the U.S. population.”

Thanks, Richard…  You’ve confirmed what we’ve known, and what the Commission needs to know.

It’s all about the money…the carriers’ money…

…and not about claims that it’s the local governments are blocking deployment.  It’s the money, stupid!

-Jonathan

 

 

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Sprint’s Network Vision Project – A Game Changer

I’ve already typed a bit about Sprint’s Network Vision project from the perspective of landlords, but this topic certainly deserves much more coverage.

Certainly, Sprint’s initiative to deploy a new technology scheme that allows others to sublease transmission capacity at Sprint sites changes the game for everyone, especially site landlords with legacy leases that don’t bar non-physical subleases.

With the confirmation that Sprint and LightSquared have inked a deal for Sprint to use Network Vision sites to deploy LightSquared LTE transmissions (for $9B, thanks so very much), and the in-place deal for Sprint to host Cox’s PCS services, the Network Vision project is turning out to be the vehicle that will transmute Sprint into a carrier for carriers, as as well as a competitor to its carrier customers.

I’m betting it’ll be interesting to see how the law suits pan out if Sprint’s network ever crashes for its carrier customers, but not for its own Sprint and Nextel customers.

From a planning perspective, how this type of collocation is permitted will be interesting, if it’s even disclosed to the local government.  This new deployment scheme will have a huge impact on significant gap determinations and least intrusive means analysis, since it’s foreseeable that the carriers won’t want to disclose (all) relevant information about this type of shared use.

We’ll see…

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Senate Bill 911: Would Require Mandatory Collocation

IMMEDIATE ACTION REQUIRED!

U.S. Senate Bill 911, introduced by Sen. Jay Rockefeller (D-WV) and Sen. Kay Bailey Hutchison (R-TX) would completely disrupt the process of rational tower siting for collocation purposes.   Section 528(a) of S. 911 says, in relevant part:

SEC. 528. WIRELESS FACILITIES DEPLOYMENT.

(a) FACILITY MODIFICATIONS.—

(1) IN GENERAL.—Notwithstanding section 704 of the Telecommunications Act of 1996 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 that does not substantially change the physical dimensions of such tower.

(2) ELIGIBLE FACILITIES REQUEST.—For purposes this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower that involves—

(A) collocation of new transmission equipment;
(B) removal of transmission equipment;
(C) replacement of transmission equipment.

Simply put, if there’s a tower there now, and another carrier (or even the same carrier) wants to collocate, remove, or replace “transmission equipment” (whatever the industry wants that term to mean), then S.911 would require that “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower that does not substantially change the physical dimensions of such tower.”

Would anyone like to tell how big a change is required before it becomes a ‘substantial change to the physical dimensions of the tower?

No, I didn’t think so, but I suspect the wireless industry would suggest that a 33% to 50% change would be less than substantial.

Like so much legislation pushed by the wireless industry, the (un)intended consequences to such broad language could result in collocations that result in currently camouflaged towers losing their camouflage.

Here’s a little photo simulation I created to show you what I’m talking about (warning: This is a LARGE file so give it sufficient time to load, especially if you’re on a slow connection):

S.911 Could Result in THIS!(This is a base photo of a wireless flagpole site.)

Do we really want to see wireless carriers have the federal right to do this because of mile-wide loopholes in the current language?  Nope.

S.911 cleared Committee last week, and is now on the floor of the Senate.

NOW IS THE TIME TO CONTACT YOUR SENATORS TO VOICE YOUR OPPOSITION TO S.911 AS LONG AS IT CONTAINS SECTION 528(a).

To find your Senator, CLICK HERE. (Opens a NEW window.)

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San Mateo CA Grand Jury on Muni Cell Siting Policies

Last month, the Civil Grand Jury of the County of San Mateo, California released the results of its inquiry into municipal wireless siting matters.

The report, titled “Cell Towers: Public Opposition and Revenue Source” asked as its questions,

Do cities and the County of San Mateo (the County) have effective governing policies and/or ordinances for cell tower installations that provide the public with a clear  understanding of how applications are adjudicated? Are cell tower installations a source of revenue for cities and the County?

The recommendations of the Grand Jury are:

The 2011 San Mateo County Civil Grand Jury recommends to the County Board of Supervisors and the City Councils of all cities in San Mateo County the following:

1. Review and revise, if needed, the current fee structure to recoup staff costs for processing cell tower applications;

2. Negotiate lease agreements for future installations on public land that generate revenue or other tangible benefit to the  community;

3. Add cell tower maintenance and removal provisions if they are not already included in existing ordinances and lease agreements;

4. Require that all new lease agreements contain a provision requiring service providers to install newer technology as it becomes commercially available to reduce the footprint of cell towers; and

5. Develop a webpage within County and city websites which clearly posts local ordinances, policies and procedures as well as federal regulations related to cell tower installations.

The Grand Jury further recommends the City Councils of Daly City, East Palo Alto, Half Moon Bay, Portola Valley, and Woodside pursue new or amended leases for existing cell towers on public property that are not currently generating revenue or other community benefits.

To read the guts of the report, click here: 2011 San Mateo Civil Grand Jury Report on Municipal Wireless Siting Practices.

 

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CPUC to Review AT&T&T Proposed Merger

The California Public Utilities Commission will launch an investigation into the pending AT&T/T-Mobile merger.

AT&T&T LogoThe Commission, which is now populated by a majority of members appointed by Gov. Jerry Brown, will evaluate whether to propose conditions on the merger.  The Commission will be taking public testimony, and moving its review along a fast track which may result in a Commission action in October of this year.

Here are two links with additional information on the pending CPUC review:

The Los Angeles Times article: http://latimes.com/business/la-fi-puc-att-20110609,0,2964962.story

The CPUC Press Release: http://docs.cpuc.ca.gov/word_pdf/NEWS_RELEASE/136944.pdf

 

 

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T-Mobile’s “Truly Unlimited” Plan is Truly Limited

Here’s a cute little Now-You-See-It-Now-You-Don’t bit of advertising slight-of-hand:  T-Mobile’s current “Truly Unlimited” marketing campaign.

Here’s a part of the current advert on T-Mobile’s web site (and paralleling the TV ads currently running):

 

T-Mobile's Truly Unlimited plan?  I think not!

But once you’re wowed by the big pinkish letters at the top, your eyes may not wonder down to the fine print above, which says “Includes 2 GB of full-speed data.”

Huh? How can something “Truly Unlimited” have a full speed data transfer limitation?  Later in the ad, also in mouse type is this little gem: “T-Mobile’s plan includes 2 GB at full speeds; reduced speeds for remainder of bill cycle.”

Reduced Speed is, ah, “Truly Unlimited”?

Then, buried down in the page is this little gem:

Data: Data speeds slowed after 2000 MB per billing cycle. Capable device required to achieve 4G speeds. Your data session, plan, or service may be slowed, suspended, terminated, or restricted if you use your service in a way that interferes with or impacts our network or ability to provide quality service to other users, if you roam for a significant portion of your usage, or if you use a disproportionate amount of bandwidth during a billing cycle. You may not use your plan or device for prohibited uses. Messaging: You will be charged for all messages you send and that are sent to you even if they aren’t received. Length/size of messages may be limited.

Now that’s “Truly Unlimited” in my book!

Click here for a PDF of T-Mobile’s “Truly Unlimited” ad as it appears on its web site.”

You’ve got to love those marketing types…And the clever attorneys who write disclaimers for them.

Jonathan

PS: Does anyone know what the ‘reduced speed’ is?  300 baud?  (Sorry…dating myself…) jk

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AGL Bulletin: With GPS Complications, Short-Term Site Growth May Elude LightSquared

From today’s (4/15/11) AGL Bulletin.

With GPS Complications, Short-Term Site Growth May Elude LightSquared

The tower industry’s dreams of being a part of LightSquared’s plans to deploy 40,000 high-power transmitters may have to wait. Given the potential for interference to its spectrum neighbor, GPS, the proposed nationwide broadband network may not trigger significant site leasing activity in the near term, according to RBC Capital Markets.

LightSquared’s system proposes to operate in the 1525-1559 MHz band, right next to the GPS downlink frequencies in the 1559-1610 MHz band.

“Given LightSquared’s current spectrum impairment (GPS interference in one of its L-band slots, and Inmarsat clearing requirements in the other slot that are not slated for resolution until 2013) and the availability of spectrum in other bands, we believe a conservative stance is appropriate with respect to LightSquared actually building out a significant network, even if it were to reach an agreement with Sprint,” RBC Capital Markets wrote in its April Equity Research Industry Comment.

In January, RBC first voiced uncertainties about LightSquared, even though it had its funding in place, because it noticed the carrier was slowing its build out. Then the National Telecommunications and Infrastructure Administration sent a letter to the FCC warning it about possible GPS interference.

“LightSquared significantly slowed its network planning and site acquisition activities near the turn of the year, and we are aware of continuing progress in only three markets,” RBC noted.

The aviation industry is very concerned about the possibility of interference to GPS receivers, which provide planes with navigation, according to Aviation Week. Manufacturers and users are currently testing GPS receivers for susceptibility to interference from the planned nationwide broadband wireless network. The FCC’s waiver grant required LightSquared and the U.S. GPS Industry Council to work together to investigate the possibility of interference and to identify ways to prevent that interference to GPS, if necessary.

However, in an ex parte teleconference presentation to the FCC on Jan. 19, the U.S. GPS Industry Council already presented the potential for LightSquared service to cause severe interference to GPS users.

“Simply put, the U.S. GPS Industry Council’s testing discloses that LightSquared’s very high output power from its planned 40,000 sites, coupled with its proximity in frequency to the very weak GPS downlink band, forms a witch’s brew for catastrophic interference to GPS receivers,” Jonathan Kramer, principal, Kramer Telecom Law Firm, wrote in his blog. “LightSquared has stated that it can take care of the potential interference to GPS users using filters. It’s unclear whether the filters are sufficient, or who would be expected to pay for the cost of the filters.”

All eyes will be on that receiver testing with those filters, which will be completed at the end of May with a final report due to arrive at the FCC on June 15.

If you don’t already subscribe to AGL Magazine and the AGL Bulletin and you’re a wireless professional…you’re not really. Subscribe today.

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More on Substantial Evidence (YAT-MC) (T-Mobile v. City of Margate)

In T-Mobile South LLC v. City of Margate (Florida) decided on April 4, 2011 (SD FL Case No. 10–cv–60029), District Judge Alan Gold discussed the topic of substantial evidence in several interesting lights.

In granting summary judgment to T-Mobile, Judge Gold said

d. “Substantial Evidence”Looking beyond the text of the written Resolution to the transcript of the December 9 Hearing, T–Mobile argues that the City Commissioners’ ultimate decision denying its Application was not supported by “substantial evidence” as required by 47 U.S.C. § 332(c)(7)(B)(iii). T–Mobile asserts that the only opposition voiced against its Application was “purely generalized objection, with no specific evidence or support” and “unqualified, unscientific opinion of the City Commissioners and lay members of the public.” [ECF No. 24, p. 13]. T–Mobile concludes that such generalized opposition may not qualify as “substantial evidence” under the TCA.

*10 The City responds to this argument with two short paragraphs in which it outlines the definition of “substantial evidence” and notes that T–Mobile bears the initial burden of proof on this issue. [ECF No. 33, p. 8]. This response raises no disputes of material fact and offers no reasons why the Commissioners denied the Application, much less any explanation as to why those justifications for denial should qualify as “substantial evidence” under the TCA. As T–Mobile notes, the City also incorrectly argues that T–Mobile must present “substantial evidence” whereas the TCA actually requires that relevant State or local governmental denial decision be supported by substantial evidence. 47 U.S.C. § 332(7)(B)(iii).

Although I could hold in T–Mobile’s favor alone on the basis of the City’s inadequate response on this point, I am also obligated to consider the record in its entirety when reviewing a dispute governed by § 332(c)(7)(B)(iii). Thus, I look once more to the transcript from the December 9 Hearing because the City’s official written decision provides no reason for the denial. As reflected in that transcript, the City Commissioners’ votes to deny the Application were not accompanied by any contemporaneous comments from the Commissioners offering reasons for their votes. [ECF No. 26–1, pp. 86:11–87:11]. Elsewhere in the transcript are certain complaints voiced by City residents against T–Mobile’s Application. Some residents indicated that they opposed the plan because they preferred that T–Mobile place the new tower in its neighboring town of Coral Springs.14 But as noted above, the City concedes that a significant coverage gap exists in the City of Margate, and it advances no arguments that the heart of that gap was in Coral Springs, or a neighboring town, or any place else other than Margate. Likewise, the City Attorney responded to these comments by informing the residents that Margate’s ordinances prohibit using residents’ preferences to place the tower in another town as a basis to deny such an application.

Another city resident cited health concerns such as radiation as a reason for his opposition to the Application. [ECF No. 26–1, pp. 64:24–65:22]. Again, the City Attorney responded that the “federal courts have specifically ruled that radiation cannot be the basis for turning this down.” [Id. at 66:2–4].16 It does not appear that the City Commissioners were concerned with the aesthetics of the proposed WCF. When T–Mobile representatives offered to show pictures or designs of their proposed “flag pole” design, at least one City Commissioner responded: “We don’t need to see it. We know what it looks like.” [ECF No. 26–1, p. 24–27]. Likewise, when the City Attorney asked the City’s independent consultant to comment on the proposed idea, a City Commissioner stated “No, I don’t want to hear anymore.” [ECF No. 26–1, pp. 71:25–72:1]. Several other aspects of the December 9 Hearing transcript provide the distinct impression that the City Commissioners denied T–Mobile’s application in order to appease a crowd of local residents who had gathered to attend the hearing and oppose the Application.

*11 Eleventh Circuit case law provides certain guidelines about the types of reasons a State or local government may rely on in order to deny an application under the TCA. For example, a “blanket aesthetic objection does not constitute substantial evidence under § 332.” See Michael Linet, Inc., 408 F.3d at 761. But aesthetic objections “coupled with evidence of an adverse impact on property values or safety concerns can constitute substantial evidence.” Id. Similarly, denial may be based on testimony of local realtors that the proposed cell tower would adversely impact home resale values or if the site may have a negative effect on nearby air traffic or to the safety of school children. Id. at 760; City of Huntsville, 295 F.3d at 1208–09. But “generalized objections with no articulated reasons” and “rationalizations constructed after the fact” do not constitute “sufficient evidence” under the TCA. Preferred Sites, 296 F.3d at 1219–20 & n. 9.

This case law provides no support for local governments that deny a provider’s Application on the basis of health effects or a preference to place the relevant cell tower in a neighboring town. Construing this evidence in the light most favorable to the City, I can only conclude that there are no disputes of material fact that the City did not provide sufficient evidence for its denial of T–Mobile’s Application, and a reasonable mind could not accept the evidence in the record as adequate to support the City’s denial.

(Emphasis added.) T-Mobile S. LLC v. City of Margate, No. 10–cv–60029, 2011 WL 1303898, 9–10–11, Slip Copy (S.D. Fla. Apr. 4, 2011). 

“YAT-MC” = “Yet another T-Mobile Case”

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T-Mobile v. City of Newport News VA – Substantial Evidence, Not.

In T-Mobile Northeast LLC. v The City Council of the City of Newport News, VA et al (EDVA Case No. 4:10cv82), the magistrate judge (Hon. T. Miller) spent a fair amount of time in his opinion discussing what constitutes substantial evidence in the way of claims of property devaluation resulting from the proposed installation of a cell tower.

Judge Miller said, “[a]lthough the Court is aware of the Fourth Circuit’s charge to not hold citizens to a standard which requires them to come armed with a slew of experts to defeat any CUP, the Court finds that such a nonspecific claim as to a possible decrease in property values for the general community falls closer to the “speculative” nature of comments less likely to be considered substantial evidence by the reasonable legislator.”  T-Mobile Ne. LLC v. City Council of Newport News, Va., No. 4:10cv82, 2011 WL 1086496, at *6 (E.D. Va. Feb. 4, 2011).

In her decision adopting the recommendations of the magistrate judge, Judge Rebecca Smith made it clear that, “[ ] unsupported statements about fears of some possible reduction in home value without further evidence cannot form the basis of substantial evidence.”  (Emphasis in the original.) T-Mobile Ne. LLC v. City Council of Newport News, Va., No. 4:10cv82, 2011 WL 1103004, at *1 (E.D. Va. Mar. 23, 2011).

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AGL Bulletin: Lawsuit Tests Mettle of FCC Shot Clock

The following is from today’s edition of the AGL Bulletin. A subscription link is below the article.

Verizon Wireless has filed a lawsuit against the Town of Irondequoit in the U.S. District Court, Western District of New York, concerning inaction on a proposed cell tower in the upstate New York town. It appears to be a good test case for the FCC’s shot clock, which is designed to ensure municipalities don’t drag their feet in processing cell tower applications.

“I was at the FCC when the shot clock order was issued, and I know that the sincere intent was to spur broadband deployment by creating a more efficient tower siting and collocation review process. Companies prefer to work things out with zoning authorities and lawsuits really tend to be a last resort,” said Monica Desai, Patton Boggs, former FCC official.

Back on June 18, 2010, Verizon Wireless filed an Application for Special Permit with the Town Board to replace an existing 20-year-old tower and equipment shelter at a local fire department with a new monopole and shelter, which could be used for collocation of the fire department and county public safety. The original tower is 62 feet in height with an antenna that reaches 82 feet AGL.

Seven months into the process, Feb. 11, 2011, the Town filed a positive declaration under New York’s State Environmental Quality Review Act, which triggers the time-intensive development of an environmental impact statement. A little more than a month later, Verizon Wireless filed its suit.

Verizon Wireless accused the Town of “unreasonably and repeatedly delaying” it from providing service where a gap currently exists. The carrier noted language in the Telecom Act requiring municipalities to act on requests to build wireless facility in a “reasonable time period,” and the FCC’s definition of that time period at 90 days for collocations and 150 days for new builds.

Both the Town Board and the Town Planning Board met in workshop sessions, followed by a public hearing last July at which the public voiced its concerns. The application was addressed again in a Town Board workshop in August, and a wireless consultant was subsequently hired to review the proposal’s technical aspects. A week later, Verizon Wireless supplied supplemental information, and another public hearing was held at which, according to Verizon Wireless, the same group of residents voiced the same concerns as they had at the earlier hearing.

In September, Verizon Wireless performed two days of crane/transmitter testing to fulfill requirements of the consultant’s report. The tower was scheduled for a vote in September but a supplemental report by the consultant caused an adjournment until October. Two more public hearings were held in October, but the vote was postponed to November because Verizon Wireless had not completed the analysis of its testing.

Also in October, the consultant supplied two supplemental reports requiring additional information from the carrier, a repeat of the crane/transmitter testing by an independent party, the effect of the tower on property values, the structural stability of the tower, sound levels from the on-site generator, title issues on adjoining property and the provision of data services on the tower in addition to voice.

On March 18, 2011, Verizon filed suit against the Town. “The defendants have engaged in unnecessary delays and have unreasonably failed to take final action on the application,” Verizon Wireless wrote in its complaint. “The delays … have put the fire district site application into its 273rd day as of the day of this complaint; far more than the 150-day limit previously prescribed by the FCC.”

But Verizon may face a Shot Clock Order problem of its own making, according to Jonathan Kramer, a lawyer and RF engineer representing governments.

Kramer notes that Section 332(c)(7)(B)(v) of the Telecom Act allows an aggrieved party to file suit “within 30 days after such … failure to act” by a State or local government.

The FCC’s Shot Clock Order clarified when the 30 days begins. Kramer cites that portion of the Order, which says “Specifically, [the Commission finds] that a ‘reasonable period of time’ is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications. Accordingly, if State or local governments do not act upon applications within those timeframes, then a ‘failure to act’ has occurred and personal wireless service providers may seek redress in a court of competent jurisdiction within 30 days, as provided in Section 332(c)(7)(B)(v).”

Kramer points out that Verizon admits in its complaint that it waited 273 days from the date of its initial application filing to commence the lawsuit against the Town. Under the shot clock order, the lawsuit should have been filed on or before the 180th day. The delay in filing its lawsuit, according to Kramer, may deal a knockout-blow to Verizon’s shot clock claim.

If you are involved in wireless and tower siting/planning issues and don’t already subscribe to Above Ground Level (AGL), then you should subscribe today at  http://www.agl-mag.com/subscribe.html

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