AT&T&T Likely to Have to Divest Portions of Networks

Reuters is reporting that AT&T CEO Randall Stephenson believes that his company will have to divest portions of its existing wireless network to secure federal permissions to acquire T-Mobile.  Stephenson’s comments were made in New York at a Council on Foreign Relations event held on March 30, 2011

My suspicion is that T-Mobile will be similarly required to divest portions of its existing wireless network in the same or adjoining areas as those assets that AT&T will shed to make the deal work for the Feds.

The shed assets will help strengthen the remaining, small competitors, who will then become known as current take-over targets for other major players.

Stephenson also said at the same event that he expected consumer prices for wireless services to continue drop as a result of the proposed merger.  His comments came just hours before April Fools Day.

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AT&T&T?

It’s no surprise that T-Mobile will soon cease to exist in the U.S.  What is a surprise is that AT&T is claiming the prize, rather than the widely-rumored suitor, Sprint/Nextel.

What is more of a surprise is that T-Mobile lasted so long before giving up the ship. T-Mobile has always played a game of the catch-up wanna-be to the legacy national carriers in the U.S. 

What does make sense is that AT&T, rather than Sprint/Nextel looks like the winner: Sprint/Nextel certainly needs access to more sites and licenses, but AT&T can make better use of T-Mobile’s assets, specifically the AWS-Band frequency assignments around 2100 MHz.

AT&T went the other direction when it focused, rightly, on gaining new 700 MHz frequencies for its LTE data (and later, voice) deployments.  By taking T-Mobile, AT&T gains more spectrum in the 1900 and 2100 MHz bands to add to its existing 700 and 860 MHz assignments.  Sweet.  AT&T’s recent purchase of the national 700 MHz band license from the ill-conceived and now all-but-defunct MediaFLO/FLO-TV operation of Qualcomm makes even more sense given the pending marriage with T-Mobile.  Sweeter.

Sprint could not have benefited to the same degree as AT&T given that it does not have 860 MHz band assignments (yes, I’m discounting the Nextel assignments for this discussion since those have turned out to be such a poor deal for Sprint).

IF THIS DEAL GOES THROUGH, and there’s certainly a big IF in there, I suspect that the even-newer AT&T will be forced by the DOJ/FTC/FCC to sell off chunks of the existing networks of both firms.  This has been the trend in prior mergers/buy-outs, and it’s unlikely that this deal will not see sales of major network assets in the name of competition.

What’s next?

For site landlords, in about a year it will be time to take out their AT&T and T-Mobile lease contracts and look at those transfer terms.  It’ll be a really interesting time for site lessors with both AT&T and T-Mobile currently collocating at the same site.

For other wireless carriers, this deal will force some shotgun marriages. 

I predict that Sprint/Nextel will now look to MetroPCS.  Verizon will look at MetroPCS, too.  This may also be the start of the end-game for Cricket Wireless.

Finally, many of the roaming contracts between the biggies and the smaller regional PCS and cellular carriers contain buy-out options (the biggie can for the sale of the small fish).  We’ll see Verizon continue its aggressive campaign of Roam-to-Buy as a first step of blunting the AT&T/T-Mobile deal.

For now I think we should start calling the new network: “AT&T&T”!

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The GPS World Lines Up Against LightSquared

In yet another bold step to block LightSquared from initiating its high-powered terrestrial wireless service on a band adjacent to the GPS weak signal downlink band, a consortium of GPS manufacturers and industry users have formed the “Coalition to Save Our GPS” (on the web at SaveOurGPS.org).

This site has various news clipping and documents related to the anticipated interference to GPS from LightSquared’s planned operations.

Presently, the consortium members include:

Aeronautical Repair Stations Association
Air Transport Association
Aircraft Owners and Pilots Association
American Association of State Highway and Transportation Officials
American Rental Association
Associated Equipment Distributors
Association of Equipment Manufacturers
Case New Holland
Caterpillar Inc.
Deere & Company
Edison Electric Institute
Esri
Garmin
General Aviation Manufacturers Association
National Association of Manufacturers
OmniSTAR
Trimble

This is a very public ‘front’ for this fight.  Can print ads and radio spots be far behind?  I think not!

LightSquared has a report due to the FCC tomorrow (March 15). That was a particularly bad day for Julius Caesar; how will it turn out for LightSquared?

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Free AT&T In-Home Microcell?

Findlaw is reporting that AT&T Wireless is offering some of its customers a free in-home microcell (sometimes called a femtocell) … for customer who repeatedly complain about dropped calls.

According to Findlaw, “If you have complained to AT&T about your coverage or have used their application to report dropped calls, you are likely to be contacted by AT&T regarding this offer. It’s something to consider if you haven’t already decided to switch to Verizon. Customers report already beginning to receive letters with offer codes in the mail. If you have difficulty with service at your home or office but haven’t received an offer in the mail, it’s probably wise to call AT&T and give them a little nudge.

The AT&T “Mark the Spot” app, available at the iTunes Store, is your ticket to reporting AT&T service problems.  It’s also the apparent way to get AT&T’s attention that you should get one of their free femtocell.

This is an interesting tool for many reasons, not the least of which is that some smart municipal attorneys might very well look to ‘discover’ this data when AT&T files a law suit in light of a government’s siting permit denial.

…I’m just say’n…

Anyway, I do think that this is an interesting way to try to maintain customers who might be thinking about jumping to Verizon’s iPhone service (even with its data speed and multitasking limitations, but that’s a different posting).

For AT&T’s information on its in-house microcell/femtocell, CLICK HERE.

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LightSquared v. GPS Users: We’ll know on June 15, 2011

At the direction of the FCC on January26, 2011 (See: http://tinyurl.com/lightsquared-fcc-file for all of the filings), LightSquared and the GPS Industry Council have formed a working group. The working group will conduct tests of LightSquared’s transmission system to determine whether LightSquared’s proposed filter solution will resolve the demonstrated potential for interference to GPS users within miles of each proposed LightSquared site.

The potential for LightSquared service to cause severe interference to GPS users was made clear in an ex parte teleconference presentation made on January 19, 2011 to the FCC by members of the GPS Industry Council.

Simply put, the 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. LightSquared’s system is to operate in the 1525-1559 MHz band, while the GPS downlink frequencies are in the 1559-1610 MHz band. You can read the ex parte notice and the presentation by clicking here.

LightSquared has stated that it 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.

On February 25, 2011, Light squared submitted its first report to the Commission regarding its work with the GPS Industry Council. That report is linked here. The group’s next report is due on the Ides of March. The final report showing the results of the filter testing is due to the FCC on June 15, 2011.

To frame the uses and users who could be negatively affected by GPS interference, or the outright loss of GPS coverage, here’s an abbreviated list of users and uses:

Military: Locations; targeting; timing; network synchronization; stuff we don’t know about

Aviation: Precision landing systems; aircraft location; timing; network synchronization

Transportation: Vehicle location; timing; network synchronization

Local Governments E911; Vehicle location; timing; network synchronization

Industry E911; Vehicle location; timing; network synchronization; precision measurements; stuff we don’t know about

Non-Government Users Location; rescue; timing; network synchronization

Yeah, this is a big deal

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LightSquared Turning Into LightQuartered

LightSquared, based in Reston, Virginia, is a nascent  provider of 4G services to wireless carriers.  Or, they’d like to be.  They are looking at some difficult times ahead in their initial roll-out.

The NTIA has expressed concern to the FCC that LightSquared will cause interference to GPS receivers, degrading or blocking location information for wireless handsets.  You can read that letter for yourself by clicking on the link below.

Oops.

The government agencies concerned about GPS interference are  Departments of Defense, Transportation and Homeland Security.

OopsSquared.

Today, the aviation industry joined in expressing concerns regarding GPS interference.  The FCC has posted letters it has received from Hawker Beechcraft Corp., Diamond Aircraft Industries GmbH, and the National Business Aviation Association (a aviation-industry trade group).

OopsCubed.

This should be interesting!

NTIA_FCCletter_01122011

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Current Issues in Cell Tower Leases

March 3, 2011: 2 hour live teleconference
1 pm ET (12 pm CT, 11 am MT, 10 am PT)

Teleconference Highlights:

The wireless industry has built more than 250,000 cell sites in the United States in the past 20 years. But many more cell sites are needed as iPhones, iPads and the like strain existing network capacity with data, email, computer and video applications, as well as to fill gaps in coverage. New cell sites and significant modifications to existing cell sites will also be needed due to the FCC’s new advanced wireless services and goal of using wireless to increase broadband speeds and coverage.

This audio conference will help level the playing field by providing private and municipal property owners with the expertise of two faculty members highly experienced in cell tower and cell site leases – property owners usually are negotiating such leases for the first time, while the cell companies have teams who work exclusively on such leases.

This audio conference will focus on key business issues in wireless site leases, including lease rates, who gets the revenues from additional antennas or carriers being co-located at a site, potential underpayments by cell companies on existing sites and why rent reduction requests generally should be denied. An emphasis on the industry-specific elements and terms of modern cell site leases, and renewals and modifications of expiring leases, which are important for the property owner, their attorney and the leasing agent involved in these efforts. You will be better able to identify and resolve issues that are unique to wireless siting, including what may be included in a lease that cannot be included in a government-issued permit, site location and value, lease term and terminations, access requirements, interference regulation and mitigation, design and camouflage, and radio frequency emissions issues.

Learning Objectives

  • You will be able to maintain and increase the revenues the property owner receives, and discuss the common elements of private wireless site leases on developed and undeveloped land.
  • You will be able to utilize practice pointers, including key concepts, for owners of private property and their attorneys, as well as municipalities and municipal attorneys.
  • You will be able to understand the basics of wireless technology and the real property, technical and technology issues that drive a wireless carrier’s siting and leasing process.
  • You will be able to review insurance and indemnity provisions to protect the property owner.

Faculty Information

John W. Pestle, Esq., Varnum LLP
Jonathan L. Kramer, Esq., FSCTE, BTS, BDS, BPS, Kramer Telecom Law Firm, P.C.

MCLE/Educational Credit Information

  • AIA
  • AICP (Pending)
  • CC
  • CLE
  • ENG
  • PMI

Who Should Attend?

This audio conference is designed for attorneys, planners, directors of development, project managers, government administrators, council and board members, land use officials, public works and utilities directors, municipal government officials, engineers, architects, surveyors and real estate professionals.

5 Easy Ways to Register:
Online: www.lorman.com
Phone: 1-866-352-9539
E-mail: customerservice@lorman.com
Fax: 1-715-833-3953
Mail: Lorman Education Services, Dept 5382, PO Box 2933, Milwaukee, WI 53201-2933
Seminar ID: 387436
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Going to Deny a Site in Nebraska? Better Do it Right.

US District Judge Richard Kopf has, again, set out the minimum ‘in writing’ and ‘substantial evidence’ standards for a Nebraska local government intending to deny a wireless site application.

On December 23, 2010, Judge Kopf granted a motion for summary judgment sought by Viaero Wireless to require the Village of Doniphan, Nebraska to issue the required permits to permit Viaero to construct a new wireless site within the Village.

Viaero argued that the Doniphan Board of Trustees’ denial of its CUP application violated § 332(c)(7)(B)(iii) of the TCA because the Board’s decision was not in writing or supported by substantial evidence contained in a written record.  Judge Kopf agreed.

In his decision, Judge Kopf cited the facts from the record:

During its regular monthly meeting on February 8, 2010, the Doniphan Board of Trustees considered and held a public hearing to receive public comment on Viaero’s CUP application. A Viaero representative attended the meeting and made a Power Point presentation to the Board in support of Viaero’s CUP application. The representative also answered questions posed to him from both the Board and various citizens attending the meeting.   No motion was made to approve the application and no action was taken to approve or deny the application at that meeting.   With respect to the CUP application, the  February 8, 2010 meeting minutes only state:

The Public Hearing to receive public comment on a conditional use permit application from Viaero Wireless to construct a wireless communication tower in the 200/300 block of North First Street opened at 8:00 p.m. Chris Riha, Site Acquisition Manager with Viaero Wireless gave a power point presentation detailing plans for the tower, and its location. He also addressed common concerns with this type of structure and answered questions. There were several residents and property owners of the Village who were present for the discussion. The 80 foot self supporting lattice tower would be located to the north and east of White Farms Trucking and is needed in order to improve cell phone coverage for customers in the Doniphan area. The tower would be surrounded by a chain link fence housing a back up generator, a buried 1,000 gallon propane tank and an aggregate building to store the electronic equipment. The Board heard numerous concerns and comments from members of the public in opposition to the tower’s location, which is near a residential district. The overall feeling from the public was that the tower needed to be moved away from the housing area to a more suitable location. After a lengthy discussion the Public Hearing closed at 9:36 p.m. Chairman Treat then called for a motion to approve the Conditional Use Permit application from Viaero Wireless to construct a wireless communication tower in the 200/300 block of North First Street. No such motion was made, therefore no action was taken by the Board and the Conditional Use Permit was not approved.

Viaero’s CUP application was again considered by the Doniphan Board of Trustees at a meeting held on March 8, 2010. No additional testimony on Viaero’s application was taken by the Board at that meeting. However, one of the trustees made a motion to deny the application. That motion was seconded and passed unanimously. There was no discussion by the Board of any reason for denying the application. The Board’s minutes for its March 8, 2010 meeting say only, “[a] motion was then made by Jenkins, seconded by Haile to deny the Conditional Use Permit Application from Viaero Wireless. Motion carried unanimously.”

(Internal citations omitted)

Judge Kopf explained:

The TCA requires that “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii) (emphasis added). In USOC of Greater Iowa, Inc. v. City of Bellevue, Nebraska, 279 F. Supp.2d 1080, 1084-85 (2003), a case with facts similar to those presented here, I concluded that in order for a decision by a local government denying a request to place, construct or modify personal wireless facilities to be “in writing” for purposes of this section of the TCA, it must: “(1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.” Id. at 1084-85 (2003) (quoting New Par v. City of Saginaw, 301 F.3d 390, 395-96 (6th Cir. 2002)). The Doniphan Board of Trustees’ decision denying Viaero’s CUP application is insufficient under this standard.

The decision to deny Viaero’s application is only noted in the minutes of the March 8, 2010 Board meeting. As was the case in USOC of Greater Iowa, these meeting minutes merely reflect that the application was unanimously denied. The minutes do not contain stated reasons for the denial or an explanation of how the decision was reached. [The Village] argues that the combination of the meeting minutes from the March 8, 2010 meeting and the February 8, 2010 meeting satisfy the “in writing” requirement. The court disagrees. While the February 8, 2010 minutes give some general indication as to what evidence was presented at the hearing, there is no explanation as to why the Board ultimately denied the application.

Defendant urges the court to reconsider its decision in USOC of Greater Iowa and find that any decision that is “in writing,” including a decision reflected in written meeting minutes, should be held to satisfy the “in writing” requirement contemplated by the TCA. The court declines to do so. As I concluded in USOC of Greater Iowa, “permitting local boards to issue written denials that give no reasons for a decision would frustrate meaningful judicial review, even where the written record may offer some guidance as to the board’s rationale.” USOC of Greater Iowa, 279 F. Supp.2d at 1084 (quoting Southwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001)). This reasoning remains sound. Without a decision adequately explaining the reasons for the denial, it is difficult, if not impossible, for a reviewing court to evaluate the evidence in the record supporting the reasons for the denial.

Further, even assuming that the “in writing” requirement was satisfied, the Board’s decision would nevertheless violate the TCA because it is not “supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii.) “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” USOC of Greater Iowa, 279 F. Supp.2d at 1085 (quoting Mississippi Transp. Inc. v. NLRB, 33 F.3d 972, 977 (8th Cir. 1994)).

Further, even assuming that the “in writing” requirement was satisfied, the Board’s decision would nevertheless violate the TCA because it is not “supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii.)
“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” USOC of Greater Iowa, 279 F. Supp.2d at 1085 (quoting Mississippi Transp. Inc. v. NLRB, 33 F.3d 972, 977 (8th Cir. 1994)).

Under the substantial evidence standard we cannot substitute our determination for that of the administrative fact-finder just because we believe that the fact-finder is clearly wrong. If the Board’s findings are supported by some substantial level of evidence (but less than a preponderance) on the record as a whole (contrary evidence may not simply be ignored on review) so that a reasonable fact-finder could reach the same conclusion as did the Board, the Board’s decision must be affirmed. We will not reject the Board’s decision as unsupported by substantial evidence because there exists the possibility of drawing two inconsistent conclusions for the evidence.

Sprint Spectrum, L.P. v. Platte County, Missouri, 578 F.3d 727, 733 (8th Cir. 2009) (quoting USCOC of Greater Iowa v. Zoning Bd. Of Adjustment, 465 F.3d 817, 821 (8th Cir. 2006) ).

Defendant contends that substantial evidence supporting Defendant’s decision is contained in the minutes from the Board meeting held on February 8, 2010. In particular, Defendant points to the minutes’ reference to numerous public concerns and comments in opposition to the tower’s proposed location, which is near a residential district. With respect to these “public concerns,” the meeting minutes only state that “[t]he overall feeling from the public was that the tower needed to be moved away from the housing area to a more suitable location.” (Filing 24-3 at CM/ECF p.2. ) While public concerns can, in some instances, serve as substantial evidence, layperson residents’ generalized comments about aesthetics and property values are insufficient and, from the record presented here, there is no way of determining what the precise citizen concerns were. See USOC of Greater Iowa, 279 F. Supp.2d at 1086 (finding that generalized property value concerns by laypersons are insubstantial); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 496 (2d Cir.1999) (finding that “generalized expressions of concern with ‘aesthetics’ cannot serve as substantial evidence” for denying a permit); Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 409 (3d Cir. 1999) (concluding that generalized concerns about property values and visual impact does not constitute substantial evidence). Moreover, there is no evidence that Viaero’s CUP application was denied based on the public comments referenced in the meeting minutes. There simply is no substantial evidence in a written record to support the Board’s decision.

Substantial evidence in the record, and written decisions based on the substantial evidence…  The formalities count, and Judge Kopf has confirmed that once again.

Case No. 4:10-cv-03059

viaero.wireless.complaint

viaero.wireless.answer

viaero.wireless.decision

viaero.wireless.order

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Clearwire to Present at Citi 21st Annual Global Entertainment, Media & Telecommunications Conference

Clearwire’s CFO will, no doubt, have some important things to say about Clearwire’s UNCLEAR financial future when he presents next week at Citi’s 21st Annual Global Entertainment, Media & Telecommunications Conference. Details below are from Clearwire’s press release.  I’ll bet Sprint’s investment and finance people will be very interested in what’s said!

Clearwire to Present at Citi 21st Annual Global Entertainment, Media & Telecommunications Conference
KIRKLAND, Wash., Dec 30, 2010 (GlobeNewswire via COMTEX) —

Clearwire (NASDAQ: CLWR) today announced that its Chief Financial Officer, Erik Prusch, will speak at the Citi 21st Annual Global Entertainment, Media & Telecommunications Conference in Scottsdale, Arizona, at 5:05 p.m. MT on January 4, 2011.

Interested parties are invited to register in advance at http://investors.clearwire.com/ in order to listen to the live audio webcast presentation. A replay will be available one hour following the event until April 6, 2011.

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