Category: Legal

T-Mobile’s New Bill in California

Posted on by Dr. Jonathan L. Kramer

sb1252 padlockT-Mobile, the wireless telephone carrier, has sourced a Bill carried by Sen. Alex Padilla (D-Los Angeles, 20th District) that would, during proclaimed emergencies or upon the declaration of an emergency by the President, allow wireless telecommunications carriers to enter onto public property and set up emergency re­placement cell sites for existing sites that are “significantly impaired or rendered inop­erable by the conditions causing that emergency” (although neither term is defined, and presumably are up to the wireless carrier to self-determine).

Under Gov. Code § 830 ‘Public property’ means real or personal prop­erty owned or controlled by the public entity, but does not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity. Generally speaking, public property includes all real property owned by the local government or public agency including, for example, a local government’s offices; a public agency’s offices; schools; corporation and maintenance yards; pump stations; wells, water tanks; parks; open space; police and fire stations; government training facilities; jails; municipal airports; etc.

Emergency wireless sites allowed under SB 1252 would be “temporary” installations, however the term ‘temporary’ is not time-defined in the Bill. There is a minimal (and potentially ineffective) prior notice requirement of the wireless carrier’s entry of the public property. There is a post-occupancy notice requirement, and a permit process commencement requirement, but no procedure other than judicial to eject an uncooperative occupying carrier if the permit is denied.

The Bill provides a severely time-restricted opportunity for a limited class of public property owners to opt out of the requirements of SB 1252 at existing radio sites, but not at all public prop­erty sites. The time restriction is limited to within 6 hours of the declaration or procla­mation of an emergency. To be effective, the actual notice must be received by the wireless carrier within that time.

There is no compensation requirement for the carrier’s occupancy of the public property.

The Bill provides that the wireless carrier will indemnify and hold harmless a limited class of public property owners, but no defense of the public property owner is pro­vided for in the Bill.

This Bill has cleared the California Senate, and is now in the Assembly, where it is cur­rently being held at the desk. It needs to stay there, or to be dramatically altered.

As of May 14, 2008, the following groups have officially supported the Bill: T-Mobile (source); California Chamber of Commerce; CTIA – The Wireless Association; the League of California Cities; and the Sheriff-Coroner of San Bernardino County.

A section-by-section analysis of the proposed legislation is available online. CLICK HERE to download the PDF file.

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T-Mobile sues City of San Bernardino, California

Posted on by Dr. Jonathan L. Kramer

T-Mobile (Omnipoint Communications, Inc.) has sued the City of San Bernardino, California alleging violations of 47 U.S.C.  332(c)(7)(B)(iii) and 47 U.S.C.  332(c)(7)(B)(i)(I) of the “Federal Telecommunications Act of 1966 (sic)”, as well as alleging a violation of the U.S. Constitution Supremacy Clause.

The suit, filed by T-Mobile on March 20, 2008, concerns a City denial of a proposed cell site at 1838 West Baseline Street in San Bernardino.

You can read the complaint by clicking on the following link (734 kb PDF)

T-Mobile v. San Bernardino Complaint

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DWW: The new offense, brought to you by AT&T and MediaFLO

Posted on by Dr. Jonathan L. Kramer

Soon you’ll be able to speed down the highway who watching AT&T’s TV two-channel service on your mobile phone.  Call it “Driving While Watching” (DWW).

“Gee, Judge, I really wanted to see the whole episode of Lost, so that’s why I accidentally hit that old lady crossing the street. Sure the light was red, but I was really engrossed in the plot when I passed over the lady, and really, there weren’t any cars in the intersection at the time. You understand, don’t you, your honor?!”

Here’s the PR puff:

AT&T Mobile TV – Coming to Your Wireless Phone in May

Innovative New Service to Broadcast on Two New AT&T Exclusive Handsets from LG and Samsung

AT&T Will Feature Full-Length Television Content, including Two Exclusive Channels

San Antonio, Texas, March 27, 2008

AT&T Inc. (NYSE:T) and MediaFLO USA Inc, a wholly owned subsidiary of Qualcomm Incorporated (Nasdaq: QCOM) announced today the launch of AT&T Mobile TV with FLO, a mobile television service featuring high quality live programming. The mobile TV service will launch in May 2008 on two new exclusive handsets, the LG Vu™ and the Samsung Access™. AT&T Mobile TV will also feature two exclusive channels, which will be announced soon.

AT&T Mobile TV will deliver full-length television content and sporting events from top networks, including programming from leading entertainment brands CBS Mobile, Comedy Central, ESPN Mobile TV, FOX Mobile, MTV, NBC 2GO, NBC News2Go and Nickelodeon.

“AT&T Mobile TV is a powerful new mobile entertainment offering, which will give our customers a formidable lineup of sports, news and primetime shows, including two channels exclusive available to AT&T customers,” said Mark Collins, vice president of Consumer Data for AT&T’s wireless unit. “We are thrilled to team with MediaFLO USA to offer our customers an unmatched mobile entertainment experience that is changing the way we all look at TV.”

“By making the FLO TV service available to AT&T customers, the nation’s largest wireless carrier, MediaFLO USA continues to expand our award winning FLO TV service to consumers across the country,” said Gina Lombardi, president of MediaFLO USA. “We look forward to working closely with AT&T to continue the momentum of making mobile TV a staple for more consumers.”

The AT&T Mobile TV service will be launched on two stylish devices: the Vu from LG Electronics MobileComm U.S.A. Inc. (LG), and the Access from and Samsung Telecommunications America (Samsung).

  • LG Vu: A sleek and stunning device, the Vu gives you a clear view of TV, Web, pictures or videos on its large interactive touch screen. It also lets you get the utmost in mobile entertainment with a music player, 2.0 megapixel camera and Bluetooth® capabilities.
  • Samsung Access: This stylish handset features a large landscape display, ideal for delivering a rich viewing experience and an internal antenna for exceptional reception. It’s a great device for customers who are looking for advanced multimedia capabilities such as a camera, external stereo speakers, stereo Bluetooth, AT&T Music, CV, of course, AT&T Mobile TV.

More details on AT&T’s soon-to-be-launched mobile TV service from MediaFLO USA and the company’s exclusive handsets from LG and Samsung will be available soon. To learn more about AT&T’s other mobile entertainment offerings, visit www.wireless.att.com/entertainment.

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Sprint Nextel = Racketeer?

Posted on by Dr. Jonathan L. Kramer

In a class action suit filed by Jerald D. Crawford against Sprint Nextel Corporation, Mr. Crawford asserts that:

“Throughout the Class Period, as defined below, the Defendant originated, designed, implemented, and executed a policy, a form or established pattern and practice and/or course of conduct, by and which it would transmit via federal interstate wires, including electronic messaging (e-mail”), and federal mails, a series of deceptive, false, fraudulent and misleading advertisements regarding its “Sprint Picture Mail” plan to all persons whose names had been ascertained through the Defendant’s billing and/or business records.”

…and goes on to claim that

“The purpose and intent of these deceptive, false, fraudulent and misleading advertisements was to entice and/or lure Sprint/Nextel customers into purchasing the “Sprint Picture Mail” plan for a $5.00/month service charge without disclosing the true charges associated with this add on service, which were exorbitant and in many cases caused the purchaser’s bill to double. “

The facts of the case as asserted by Crawford are:

“In or around October 2006, the Plaintiff, Jerald Crawford began receiving advertisements via his cellular phone from the Defendant regarding its Picture Mail service that stated the following: “Service Fee to gain access, add Sprint Picture Mail to your Sprint Service Plan. A $5.00/mo. service charge (plus taxes and fees) will be added to your Sprint Invoice.

“This advertisement and promotion does not mention what other fees and costs are associated with this service. After a customer purchases this service, they still are not apprised of what other costs may be associated with it until the end of the billing cycle.

“At the end of the billing cycle, Defendant Sprint presents the customer with a total price, which the customers must pay. Defendant Sprint, through its advertisements, marketing, sales techniques, statements, actions and omissions, leads the customer to believe and understand that the price presented represents the cost of the service alone.

“Plaintiff Crawford was induced to purchase this service because ofthe allegedly low service charge associated with it, however, it was never disclosed to him or, upon information and belief, anyone else at the point of purchase that this service also charged a PCS Data fee of $0.031 per KB of data transmitted.

“Plaintiff Crawford used this service to transmit photos he had taken with his cellular phone not realizing that each time a photo was sent the Defendant was charging the PCS Data fee. At no time prior to receiving his phone bill was Plaintiff Crawford aware of the PCS Data transmission fee.

“Sprint charged Plaintiff Crawford $69.72 for the Sprint Picture Mail service. Plaintiff Crawford complained to Sprint customer service representatives about these charges and the deceptive and misleading terms of the advertisement, but was informed that the charges for the picture transmissions had to be paid.

“As described above, the $5.00 Imo. Service Fee to gain access to the Sprint Picture Mail service is a scheme to defraud and obtain money by means of false, fraudulent pretenses, and representations. Defendant Sprint operates this illegal scheme and enterprise and is aided by use of the federal interstate wires, including electronic messaging (e-mail”), and the federal mails. “

This case was filed on March 11, 2008 in the Northern District of Alabama. The case number is 2:08-cv-00443-WMA.  Click on the following link to download the case:

Crawford v. Sprint Nextel

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Florida Attorney General Helps AT&T Wireless Define “Free”

Posted on by Dr. Jonathan L. Kramer

It seems like AT&T Wireless (Cingular) had a strange notion about the definition of the word, “free” as it applies to certain downloadable content such as ringtones and SMS messages. Lucky that the Florida Attorney General could figure it out for AT&T for a settlement of $2.5 Million, which certainly isn’t free!

From the Florida Attorney General’s website:

February 29, 2008

Media Contact: Sandi Copes
Phone: (850) 245-0150

McCollum Retrieves Millions For Florida AT&T Wireless Customers Billed for “Free” Ringtones

~ National model for advertising integrity obtained through CyberFraud Task Force settlement ~

TALLAHASSEE, FL – In a significant step toward protecting consumers throughout the nation from unauthorized charges on cell phone bills, Attorney General Bill McCollum today announced that AT&T Mobility will be the first wireless company in the nation to police representations made in internet advertising for cell phone content to ensure fair and full disclosure. The company will also make full restitution to Florida consumers who were unknowingly billed for “free” cell phone content. The cooperative agreement reached by the Attorney General’s CyberFraud Task Force with AT&T Mobility will establish a new model for the advertising and billing of cell phone content. Additionally, AT&T Mobility will pay $2.5 million to the Attorney General’s Office to fund the efforts of the task force as it continues to press for similar reform across the industry and will contribute an additional $500,000 toward consumer education on safe internet use.

“Consumers should never be billed for services they thought were free of charge,” said Attorney General Bill McCollum. “Today’s agreement establishes a precedent for wireless companies accepting responsibility for the way cell phone content is advertised on the internet and the manner in which charges are passed along to consumers. AT&T should be commended for being the first wireless company in the industry to offer this reform.”

Complaints received by the Attorney General’s CyberFraud Task Force led to an investigation which showed that thousands of Florida AT&T Mobility consumers had received charges on their cell phone bills for certain third party services that they did not authorize. Often, these charges were for ringtones or other services which were advertised as “free,” but resulted in customers unwittingly being signed up for costly monthly subscriptions for third-party content, including horoscopes, wallpaper and other cell phone-related content. Examples of the bill charges often appear under the following indiscernible names:

– “Direct Bill Charges””
– “3rd Party Downloadable Content”
– “Premium SMS Messages”
– “Premium Text Messages”
– “M-Qube”
– “M-blox”

Investigators further determined that these third-party content offers often target teens who frequently respond to these advertisements because they think the services are “free,” and download them to their cell phones, not knowing their parents will later be charged. These misleading practices are common in the industry and wireless companies often receive a percentage of the charges paid by consumers. Attorney General McCollum also announced today that he has directed the CyberFraud Task Force to initiate investigations into Verizon, Sprint/Nextel, Alltel and T-Mobile in an effort to ensure that all Floridians will be protected from being similarly charged without their knowledge.

“This settlement comes at a time when the digital consumer is faced with new deceptive internet scams on a daily basis,” said Brad Ashwell, legislative advocate for the Florida Public Interest Research Group. “It’s encouraging to see a corporation of AT&T’s magnitude taking responsibility for unfair charges and it is encouraging that the funds from this settlement will ensure that the Attorney General’s CyberFraud Task force continues protecting consumers in the virtual marketplace.”

Under the agreement announced today, AT&T Mobility has agreed to adopt and enforce strict standards for internet advertising developed by the CyberFraud Task Force. The company, through its contracts with all content providers and advertisers, will now require those entities to clearly and conspicuously disclose the true cost of ringtones and other content in all online advertising to potential customers. For example, a “free” ringtone offer that results in a monthly subscription at a cost of $9.99 per month to the customer must now clearly state, “Free ringtone with paid monthly subscription of $9.99/month,” and any such charges must be separately set out in the consumer’s AT&T Mobility monthly bill. This will ensure that parents have timely notice of any unauthorized charges so they may cancel such subscriptions if they wish. Moreover, AT&T Mobility will continue to offer parents the option of blocking downloaded content from their children’s cell phones and will make this service available free of charge if third-party charges have already been billed without the parents’ knowledge.

The agreement with AT&T Mobility, formerly known as Cingular Wireless, allows customers to seek refunds even if they are no longer AT&T or Cingular customers. The company has also agreed to enhance its customer complaint resolution process and, upon request, will terminate a customer’s enrollment in any recurring membership program and will issue full credits and refunds without referring the customer to a third party for such resolution. The task force intends to use the AT&T Mobility agreement as a model as it continues its investigation of the industry.

Here is a link to the signed settlement agreement: CLICK HERE

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Birds/NEPA 1, FCC/CTIA 0

Posted on by Dr. Jonathan L. Kramer

Today, the Federal Court of Appeals for the District of Columbia Circuit reversed an FCC order regarding tower siting as being in violation of the proper NEPA standard.

The case caption and introduction are below, followed by a PDF of the decision.

No. 06-1165
AMERICAN BIRD CONSERVANCY, INC.
AND FOREST CONSERVATION COUNCIL,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION,
RESPONDENT
CTIA – THE WIRELESS ASSOCIATION, ET AL.,
INTERVENORS

PER CURIAM: The American Bird Conservancy and Forest conservation Council petition for review of an order by the Commission denying in part and dismissing in part their petition seeking protection of migratory birds from collisions with communications towers in the Gulf Coast region. In Re Petition by Forest Conservation Council, American Bird Conservancy and Friends of the Earth for National Environmental Policy Act Compliance (“Order”), 21 F.C.C.R. 4462 (2006). Their petition claimed that Commission rules and procedures for approving new towers failed to comport with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 701 et seq. We vacate the Order because the Commission failed to apply the proper NEPA standard, to provide a reasoned explanation on consultation under the ESA, and to provide meaningful notice of pending tower applications.

Court Decision

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Omnipoint v. Nashua, NH: Partial Goverment Victory

Posted on by Dr. Jonathan L. Kramer

In a ruling in the case of OMNIPOINT COMMUNICATIONS, INC. V. CITY OF NASHUA and CITY OF NASHUA ZONING BOARD OF ADJUSTMENT (Case No. 1-07-cv-00046PB, before Hon. Paul Barbadoro of the US District Court in the District of New Hampshire), the City has won it’s summary judgment motion.

From the Judge’s decision:

“Omnipoint Communications, Inc. (“Omnipoint”) alleges in this ction that the Nashua Zoning Board of Adjustment (“ZBA”) mproperly denied Omnipoint’s application for a special exception o construct a wireless telecommunications tower on property ocated within a 220-home residential development known as Coburn Woods. Omnipoint’s complaint consists of three counts. Count I s a conventional appeal from a decision of the ZBA brought ursuant to N.H. Rev. Stat. Ann. § 677:4. Omnipoint claims in Count II that the ZBA’s decision violates the Telecommunications Act of 1996 because the decision is not supported by suubstantial evidence. See 47 U.S.C. § 332(c)(7)(B)(iii). It argues in Count III that the decision violates the Telecommunications Act because it effectively prohibits the provision of personal wireless services to the area that would be served by the proposed tower. See 47 U.S.C. § 332(c)(7)(B)(i)(II). The parties have submitted cross motions for summary judgment with respect to Counts I and II. For the reasons that follow, I grant the ZBA’s motion for summary judgment and deny Omnipoint’s cross motion for summary judgment. “

Case related documents:

Omnipoint’s Complaint
City’s Answer
Amended MEMORANDUM and ORDER

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Manchester, Maine Town Meeting result: No Tower

Posted on by Dr. Jonathan L. Kramer

This evening, the residents of Manchester, Maine voted at a Town Meeting to reject the proposed settlement with MCF Communications. At the same meeting, the residents voting also approved a moratorium on accepting new cell tower construction applications while the Planning Board reviews Manchester’s cell tower ordinance.

The likely result is that MCF will continue to pursue a remedy through the courts.

Click Here; to read a Kennebec Journal story on tonight’s proceedings.

For more on the background leading to this point, click on the MCF Communications tab below this message.

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9th Circuit to T-Mobile: Your Mandatory Arbitration Agreement is Unconscionable

Posted on by Dr. Jonathan L. Kramer

On January 22, 2008, the 9th Circuit Court of Appeals affirmed a lower court decision that T-Mobile’s arbitration agreement in its Washington State wireless contracts is tainted by substantive unconscionability and is not enforceable.

From the court:

“The issues on appeal are whether the arbitration provisions in Defendant T-Mobile’s service agreements with two of its customers are enforceable under Washington state law and, if not, whether the state law is preempted by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. After two consumers of T-Mobile’s cellular phone service brought a class action against T-Mobile in state court for breach of contract and violation if the Washington Consumer Protection Act (the “CPA”), Wash. Rev. Code § 19.86.010-19.86.920, T-Mobile removed the case to federal district court and moved to compel arbitration per its service agreements. The district court denied T-Mobile’s motion to compel arbitration, holding that the arbitration agreements were tainted by substantive unconscionability and thus were unenforceable. We conclude that the Washington State Supreme Court’s decision in Scott v. Cingular Wireless, 161 P.3d 1000 (Wash. 2007), establishes that T-Mobile’s arbitration provision is substantively unconscionable and unenforceable under Washington state law, and that there is no federal preemption in light of our decision in Shroyer v. New Cingular Wireless Servs., Inc., 498 F.3d 976 (9th Cir. 2007). We therefore affirm.”

Full Decision in Louden v. T-Mobile USA

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