Category: Legal

Time Warner Cable Class Action Lawsuit Filed

Posted on by Dr. Jonathan L. Kramer
Their (corporate) parents must be so very proud of them!
Their (corporate) parents must be so very proud of them!

Now comes James Armstrong, Michal Pourtemour, Vatsana Bilavarn, individually, and on behalf of all others similar situated to sue Time Warner Cable for dropping CBS.  Well, not really for dropping CBS, but for breach of contract, deceptive business practices, unjust enrichment, and the like.

If you would like to read all 36 pages of the complaint, filed last week, you can do so by CLICKING HERE.

The suit was filed through the law firm of Weintraub and Selth, APC, a 4-attorney bankruptcy law firm in West Los Angeles.

-Jonathan

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Time Warner Cable and CBS - Now 24 Hours into the War

Time Warner Cable and CBS – Now 24 Hours into the War

Posted on by Dr. Jonathan L. Kramer
Click to enlarge and read.
Click to enlarge and read.

This post is off topic, but as a current Time Warner Cable subscriber in Santa Monica, California; a former Warner Cable manager; and long term cable industry member, I want to speak up.  Soap box, here I come…

Time Warner Cable and CBS are engaged in a game of chicken, with the TWC subscribers in New York, Los Angeles, and Dallas being held hostage until one side exclaims, “Give!”

Time Warner says that CBS wants to raise the retransmission fees by 600%, which is disputed by CBS.

Time Warner suggests that because the CBS content is provided free over the air and online, that Time Warner should not pay ‘so much’ for it.  This, of course, ignores the fact that Time Warner Cable, like virtually all cable companies, makes its subscribers pay for bundled services that far exceed the cost of those services.  It also ignores the fact that the cable industry historically raises its rates for services and equipment far faster than inflation.

CBS’s role in this stupidity is not yet fully known.  I challenge CBS to release its demands and current retransmission fees so that Time Warner Cable subscribers can see who is ripping them off: CBS or Time Warner (or both).  According to TechCrunch, CBS has blocked major market customers from viewing CBS programming on line, including in the markets where Time Warner has taken CBS content off of their systems.

This blackout, now 24 hours in duration, is bad for both companies; bad for both industries; and especially bad for TWC subscribers who are being held as captives by both sides.

This would be a good issue for the FCC to take up.

Now stepping down from my soap box.

Jonathan

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3rd Party Engineers, T-Mobile & Local Jurisdictions

Posted on by Dr. Jonathan L. Kramer

T-Mobile’s National External Affairs (“NEA”) Newsletter is a monthly online publication aimed at T-Mobile’s  outside siting professionals and others related to siting.  NEA was kind enough to add me to their subscriber list.

What follows below is an article appearing in the July 2013 issue of T-Mobile’s National External Affairs’ Siting Newsletter.  It describes T-Mobile’s view of 3rd party engineers retained by local jurisdictions primary to evaluate towers for structural integrity during upgrades.

While we on the government side might expect the article to be one sided and dismissive, I have to say that NEA’s presentation is thoughtful, considered, and very balanced.  As the article concludes, “It’s not just technical answers that will help achieve success, it is also building understanding from all sides of the equation.”  Well said, T-Mobile.

I encourage you to read the entire article below.  I reprint it here with T-Mobile’s prior written permission.

Siting from Different Perspectives:
3rd Party Engineers, T-Mobile & Local Jurisdictions

A growing number of jurisdictions are outsourcing wireless site engineering to third-party firms, especially when it comes to municipally owned water tanks. The practice creates challenges not only for T-Mobile but also the engineering firms themselves as they strive for a happy medium where wireless facilities can quickly and efficiently be deployed while satisfying municipal objectives surrounding safety and asset protection.

Municipalities turn to outside engineering firms for several reasons, including a feeling that their own staffers are ill-equipped to judge the assertions made by wireless carriers regarding siting. Budgetary constraints also restrict the time and resources municipal employees can dedicate to siting issues.

“They just want to make sure that they’re protected, that they’re protecting their assets, which is why they’re hiring these firms,” said Steve Carlson, partner delivery manager for real estate in T-Mobile’s Minneapolis market.

Minneapolis has a high percentage of wireless facilities installed on water tanks. T-Mobile’s modernization project in the market includes 162 water tank sites out of 698 total sites. It is common practice for cities in the market to require reviews of site applications by third-party engineers anytime a carrier wants to perform a new installation on a tank or conduct any kind of an upgrade.

However, there can be drawbacks for carriers when it comes to dealing with third-party engineering firms. Municipalities generally select the third-party engineering firm with which a carrier must deal, and that firm will bill all charges for time and materials to the carrier. In Minneapolis, the cost of each full review might be $3,000 to more than $10,000, Carlson said.

Often, municipalities provide no oversight of these engineering firms, some of which may run up what appear to be exorbitant bills for their reviews, said Lori LeBlanc, T-Mobile’s senior development manager in Minneapolis. “There’s no checks and balances put into place with regard to the city. It’s almost like an open-ended checkbook,” she said.

Indeed, some engineering firms appear to be taking advantage of the situation by requiring more reviews than needed. For example, T-Mobile has on occasion submitted duplicate plans from a previous installation that an engineering firm approved, only to have the same firm find issues with the new installation. “It’s always a three-review process one way or another,” Carlson said.

In addition to the financial impact, there is also an opportunity cost involved, not just for carriers, who suffer delays in deployment plans, but for local residents, who must wait for upgraded service. Individual site reviews in Minneapolis for T-Mobile modernization projects have taken from three months to more than a year.

Additionally, once a building plan is approved, a number of inspections might be instigated, all of which must be paid for by the carrier.

Further complicating matters is the fact that in Minneapolis, the three third-party engineering firms hired to conduct site reviews are vastly understaffed, with generally only one or two individuals at a firm available to perform all of its water tank reviews. This is especially egregious given the number of site upgrades currently being implemented by T-Mobile and other carriers.

“They did not staff up for the workload that they have. The cities, who are ultimately our landlords, don’t really understand that,” Carlson said.

A view from the other side

While carriers cite a number of issues in dealing with third-part engineering firms, it’s important to remember that those firms also face numerous challenges when it comes to conducting site reviews and granting approvals for wireless installations.

Paul J. Ford and Company was started in 1965. The employee-owned company, which is strictly focused on structural engineering, has offices in Columbus, Ohio; Orlando, Florida; and Atlanta, Georgia. It is registered in all 50 states, Puerto Rico, Canada and Venezuela.

Some 40 people work in Paul J. Ford’s telecommunications unit, which has been kept busy lately with requests for site reviews related to LTE upgrades, said the company’s President Kevin Bauman.  He started with Paul J. Ford in 1976, working with the company’s tower business from the start.

Placing communications antennas on a water tank usually involves three parties with divergent interests, Bauman said.

“The municipality wants assurance from a design professional that there will be no negative impact upon their water tank due to the addition of the communication equipment.  The wireless carrier knows that mounting something as small as an antenna on something as large as a water tank should have a negligible impact on the water tanks structural stability.  The structural engineer understands that it isn’t logical to require a thorough and time-consuming structural analysis of the entire water tank for this type of installation, yet some due diligence is required if that company is going to assume the responsibility for the adequacy of the installation,” he said.

Bauman explained the process that engineers go through to ensure that structural integrity and conformance to building standards are fully considered when wireless facilities are planned for installation on water tanks.
“Generally we try to get as much structural information about the water tower as we possibly can. If the water tower is adequate as it now stands, it’s usually impossible to overstress it by adding communications antennas to it,” Bauman said.

However, if the building code has changed, then a thorough structural analysis of the water tank might reveal that the water tank is structurally deficient even though the cause has nothing to do with the addition of the communication antenna. Further, Bauman noted that in many areas of the country, seismic (earthquake) loads are the controlling design criteria and not wind loads or weight.

He contends that mobile carriers often “do not have a real good understanding of the type of things that we need and the type of things they need us to do.”

For one thing, carriers often provide third-party engineering firms with insufficient information and rarely have the original drawings for a site. Bauman said he has received photos of water tanks with no additional specs from carriers that need a site review.

“A structural engineer can’t create a set of drawings and place his/her professional engineers seal on a drawing, if even the most basic structural information about the water tank is unknown,” Bauman noted.

“Many times we get so little information, we back out of the project, and that makes everybody mad,” he said. “But if we lack adequate information we can’t perform the necessary due diligence to form a professional opinion.”
When it comes to water tanks, firms such as his often have a difficult time convincing municipalities that changes to a wireless deployment on a water tank can be so insignificant from a structural viewpoint that they do not require a whole lot of engineering work.

“It’s kind of a no-brainer, but municipalities don’t like to go along with that. They want to see reams of calculations to prove that everything’s okay,” Bauman said.

That’s not to say installing wireless communications equipment on a water tank is child’s play: There are actually lots of unique issues with which to contend.

“The tricky part about doing water tanks is that they have water in them,” Bauman said. It is tough to weld anything to the side of a water tank because the water inside acts as a giant heat sink, making it difficult to develop enough heat for a good weld. In addition, when installing equipment on top of a water tank, any exterior welding can impact the coating inside the tank that protects the water.

Carriers can sometimes attach antennas to water tanks using an epoxy, which can be successful with the right epoxy and environmental conditions. There are also magnetic mounts that can be used for mounting equipment atop a water tank.

“How a structural engineer ever proves to a municipality that the magnets are strong enough, I don’t know,” Bauman said, noting there are no numbers available to prove such a setup works. But numbers are exactly what municipalities want from their third-party engineering firms.

To conduct the necessary structural reviews and provide all of the information demanded by municipalities is a time-consuming endeavor. Bauman said most carriers underestimate the amount of effort involved in water tank site reviews.  “We probably turn down 70 percent of all water tank work because it’s just not worth it,” he added.

Smoothing the process

There is clearly room for improvement in relationships between carriers, municipalities and third-party engineering firms.

Understanding the pressures put upon third-party engineering firms is one way that mobile operators can build rapport with the outside engineers. Simplifying the process from the carrier side is also beneficial.

In the Minneapolis market, where T-Mobile has modernized 106 of 162 water tank sites, the market team has strived to make the third-party review process more efficient. For example, T-Mobile assigned one construction manager to handle all interactions with third-party engineers regarding water tank placements. That helped T-Mobile in terms of tracking projects and consistency in handling issues as they cropped up, though this has admittedly sped up the process only minimally.

However, there is still work to be done.  “In the future, how do we approach the cities for future projects?” asked LeBlanc.

T-Mobile hopes that initiating more conversations with all of the parties involved will lead to more creative solutions for streamlining the approval process for new wireless installations and site upgrades when third-party engineering firms are involved. It’s not just technical answers that will help achieve success, it is also building understanding from all sides of the equation.

Copyright © 2013 T-Mobile US, All rights reserved. The National External Affairs’ Siting Newsletter is a publication that highlights topics of interest to anyone wanting to know more about siting and T-Mobile’s work with communities. For more information, please contact us by telephone (425.383.8413) or by email at natextaffairs@t-mobile.com.
Our mailing address is: T-Mobile US,  12920 SE 38th Street, Bellevue, WA 98006

 

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Land Adjacent to a Cell Tower Lease: Worthless?

Land Adjacent to a Cell Tower Lease: Worthless?

Posted on by Dr. Jonathan L. Kramer

e911_MUTCD_D12-4.svg (Updated: July 29, 2013. I’ve had a lot of comments about this post, all positive, so I start highlighting similar one-sided provisions in future posts.)

I’ve seen wireless carriers attempt land grabs before through a cell tower lease, but a current incarnation  is particular amusing.

Framed as an “Emergency 911 Service” provision (hey, that sounds like something really important, right?), the carrier’s attorney has authored the lease provision below to allow the carrier to take as much additional land as the carrier needs without benefit of paying rent.

First, I’ll ask you to read the language below, exactly as stated by the wireless carrier, then I’ll parse it for you.

Emergency 911 Service.  In the future, without the payment of additional rent and at a location mutually acceptable to Lessor and Lessee, Lessor agrees that Lessee may add, modify and/or replace equipment in order to be in compliance with any current or future federal, state or local mandated application, including but not limited to emergency 911 communication services.

Okay, piece by piece, let’s deconstruct this this one little sentence with its 58 words:

1. “In the future…” starts about 1 trillionth of a second from right now.  Maybe even sooner.  Okay, you’re in the future.  Oh, by the way, the future never ends.  This clause is good for the remaining term of of the lease to its final extension.

2. “…without the payment of additional rent…”  Do I really need to tell you that this means no more moola for more land?

3. “…and at a location mutually agreeable to Lessor and Lessee…”   Now wait just a minute.  You’re thinking that you can just say there is NO mutually agreeable location, right?  Nope.  Most states impute a good faith term to contracts (including leases which are contracts for the occupancy of land for a term).  This means that you can not mentally cross your fingers when you agree to this provision.   Most likely a judge will ‘help you’ understand your duty to negotiate in good faith.  Judges can be so very helpful.  So how much space is available at the location?  As much as the wireless carrier wants to meet the rest of the provisions

4. “…Lessor agrees that Lessee may…” You, the Lessor, agree that your tenant at the time can do anything described immediately after, so lets look at each thing in turn.

5.”…add…” start with what’s at the site and put more stuff within the existing leased area, or in the new area that they just got for free.

6. “…modify…”  is to take something there and change it, mostly likely to make it bigger or better for the carrier.

7. “…and/or replace…” so maybe the site/stuff in it is added to, modified, AND replaced all in one shot…any individual element, or any in combination will do.

8. “…equipment…” which is NOT usually a defined term in the lease, and since this word is in lower case, it can mean anything from the tower, to the antennas, the radio cabinets, the cables, to the utilities and beyond.  In other words, the carrier is likely to say that everything is equipment, and you bear the burden to disprove it.  Yeah, good luck on that one.

9. “…in order to be in compliance with…”  generally to meet the requirements, but not necessary the minimum requirements of something.  What something?  Keep reading.

10. “…any current or future…” now or in the future.

11. “…federal…” is the federal government, including Congress and all of the known and unknown federal agencies, as well potentially any of the federal military units (Army, Air Force, etc.).

12. “…state…” that big outlined place on the U.S. map where you and several million of your friends live.

13. “…or local…” that smaller outlined place within the bigger outlined place on the U.S. map where you and several hundred thousand of your closest friends live.

14. “…mandated application…” Wow!  A mandated application.  Doesn’t sound like it even rises to the level of a law or regulation.  It’s more like something you might download from the Apple iTunes store or Google Play.  Okay, we know that something is mandated, which suggests that its required.  But the failure to do something required may not be actionable, or actionable at a particular time.  Obviously this term is subject to broad interpretation, and guess who’ll do the interpreting!?

15. “…including but not limited to…”  so whatever is mandated is an include item, but not the only item.

16. “ …emergency 911 communication services.”  So now we really discover that the bolded title of the section, “Emergency 911 Service” is just a ‘red herring’ element of a much larger scheme to separate a landlord from the use and value of his or her property. Yup, emergency 911 communication service sounds really important, but as you can see, it has very little to do with the core of this lease term.

There you have it. Just one little 58 word sentence, which breaks out to 16 elements, all of which are designed to be a free land grab by the tenant.

Do I fault the wireless companies for trying to pull this little shenanigan?

Of course not.

As wireless companies know, and as you should as well, their true duty is to maximize profits for the shareholders.  Their duty to the Landlord is as little as possible, and attempts to reduce that duty by leases and lease amendments are all part of The American Way.

Now you know that the answer to the question in the title of this post depends on whether YOU make it worthless by agreeing to this sucker punch provision.

If you are asked to agree to provisions that you don’t understand, or you don’t think you understand, or even the ones you think you understand but really don’t, you might want talk with an experienced wireless attorney and law firm working for landlords.

If you are looking for a really good law firm that just happens to work for wireless site landlords, I happen to know of one.

Jonathan

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AT&T Wireless: It’s All About the Bandwidth, Dummy!

Posted on by Dr. Jonathan L. Kramer

Cricket_LeapWell, as we all know by know, it turns out that T-Mobile would not feast on the insect.  Rather, AT&T Wireless bit the Bug. Yum!

Cricket will go to AT&T, but that’s a bit of a misstatement. This deal has nothing to do about acquiring cell sites. This deal has nothing to do about keeping the Bug’s subscribers. AT&T intends to eat the guts of the Bug…it’s bandwidth…and spit out most if not all of the exoskeleton (the existing cell sites).

This deal, like most of the deals today, has everything to do about acquiring frequencies. Bandwidth… Black Gold… Texas Tea… Wireless Whiskey…

Okay, I’m being a bit dramatic and channeling Buddy Ebsen, but the fact is that bandwidth means more ‘go real fast’ for the customers, and more ‘go real fast’ for future customers.

The electromagnetic spectrum chart below makes it clear.

Spectrum poster by Randall Munroe (xkcd.com). Used with permission.
Spectrum poster by Randall Munroe http://xkcd.com/273/. Used with permission. Click on the image to enlarge.

Bandwidth is a scarce commodity, and lots of entities are vying to occupy its valuable slivers. Buying bandwidth from current licensees makes more sense–and is lots faster–than bidding on them in future FCC auctions.

More bandwidth…faster…less competition. Now there’s a recipe for success.

For more on why the Eat-a-Bug deal makes sense for AT&T, and is yet another sign of the bandwidth acquisition wars, see AGL Magazine’s insightful article on the topic: CLICK HERE.

JLK

PS: I think Randall Munroe is brilliant. Read his stuff. It’s deep. xkcd.com.

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Cal. Real Prop. J. Wireless Leasing Article Co-Authored by Kramer

Posted on by Dr. Jonathan L. Kramer

cal_real_prop_journal-cover-2013.MIDSIZE

For those of you who write cell tower leases to protect site landlords, I’m sure you will be interested in a feature scholarly article that I had the privilege of co-authoring with Christina (Chris) Sansone of the Sansone Law Firm.

Titled, “What Landlords Should Know About Cell Site Leasing” and published in the current issue of the California Real Property Journal (the journal of the Real Property Section of the State Bar of California), this is a nuts and bolts guide for practitioners.  Its text is also written to be clearly understandable to non-practitioner landlords and property managers.

The text of the article, supported by nearly 100 footnotes, addresses nearly every facet of cell site leasing from initial negotiations through the end of the lease, whether by termination, expiration, or sale.

I’m particularly proud that our missive was selected as the MCLE Self-Study Article for this issue of the Journal.  Attorneys may earn 1.0 hours of general MCLE credit for reading the article and then answering multiple choice questions regarding the content of the article.  Information about how to secure MCLE credit for reading our work may be found at the end of the article.

If you are a member of the Real Property Law Section of the State Bar of California, you should have already received your copy by mail.

As for the contents of the article, credit Chris for all of the good stuff, as well as her excellent research and analysis.  You can blame me for the stuff you don’t like.

Enjoy.

Jonathan

 

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Will T-Mobile or Dish Eat a Bug?

Will T-Mobile or Dish Eat a Bug?

Posted on by Dr. Jonathan L. Kramer

Cricket_LeapIs Leap Wireless a tasty bug?

According for FierceBroadbandWireless, which has a good eye for such things, T-Metro (really, T-Mobile and its recent meal, MetroPCS) might be getting hungry again.  This time it may be looking to eat a bug, namely a Cricket (Wireless), which is the trade name for Leap Wireless.

Oddly, I’ve been saying about the same thing about T-Mobile and MetroPCS for a while, now.

Of course, your parent(s) taught you not to eat off the floor, so it’s possible Dish might make a running Leap to eat the same bug.

For T-Mobile, this meal would squarely in the middle of its favored food groups.

Leap’s PCS system–and as importantly its customers’ handsets–are generally compatible with T-Metro’s network.  Better yet, there very little overlap between the MetroPCS and Cricket networks.  metro_cricket_coverage

How do I know about the minimal overlap?

Using home coverage maps available on the web as a yardstick, I imported Cricket’s and MetroPCS’s maps into Photoshop and overlaid then one atop the other.

Using the Photoshop Multiply tool, it was easy to see that the only basic overlap between the two networks is in central California with much lesser overlaps in Las Vegas, small parts of Georgia, and even smaller parts of Texas.

Who says everything is bigger in Texas?  Oops.  Sorry…

In the map, purple is MetroPCS’s home coverage; green and orange belong to Cricket; the dark green shows the overlap of the two networks.

Now you can see why Cricket’s frequencies (remember, this is all about frequencies for 4G+ uses, not about pops) complement MetroPCS’s.  Both complement T-Mobile’s footprint.

But wait!

What about Dish…the recent near-spoiler of the Softbank-Sprint-Clearwire deals?

I just don’t see it.

Yeah, Dish has a whole boatload of money burning holes in the bottom of their satellite receivers, but why spend the cash on little green dots and orange when the purple’s already dished on to on someone else’s plate (or dish)?

The smarter move would be for Dish to make a run on mama T-Mobile herself, with a pretty good national network already in place, and Deutsche Telekom an apparently willing on-again, off-again seller.

While I don’t rule out Dish, I simply don’t think it makes much sense for them to be a buyer of this bug.

Perhaps Dish will be a spoiler, again.

Time will tell.  Just listen for the gurgling stomachs.

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Missouri Gov. Jay Nixon Signs Wireless Siting Degreg Bill (HB 331) into Law

Posted on by Dr. Jonathan L. Kramer

Missouri local government and their residents will now be largely silenced as to the placement of wireless towers in communities.

Missouri Coat of Arms
Missouri Coat of Arms

Yesterday, Gov. Jay Nixon signed HB 331, including its “UNIFORM WIRELESS COMMUNICATIONS INFRASTRUCTURE DEPLOYMENT ACT” provisions.

HB 331 was lauded by the wireless  industry and strongly opposed by the Missouri Municipal League and many local governments.

Gov. Nixon’s office released a very brief statement on Friday saying that HB 331 and HB  345 together  “will provide the opportunity for expanded access and improved broadband and wireless service through more rapid deployment” of wireless and wired infrastructure.”

The Missouri Municipal League urged Gov. Nixon to veto HB 331, as did the  Missouri Association of Counties.

According to published reports, the Missouri Telecommunications Industry Association said the bill will “allow the industry to improve service more quickly and standardize a sometimes slow and plodding approval process.”

As summarized by the state legislature, the UNIFORM WIRELESS COMMUNICATIONS INFRASTRUCTURE DEPLOYMENT ACT will have the following effects:

UNIFORM WIRELESS COMMUNICATIONS INFRASTRUCTURE DEPLOYMENT ACT

The bill establishes the Uniform Wireless Communications
Infrastructure Deployment Act to encourage and streamline the
deployment of broadband facilities and to help ensure that robust
wireless communication services are available throughout Missouri.
The bill:
(1) Prohibits an authority as specified in the bill with
jurisdiction over wireless communications infrastructure from
taking specified actions that could result in a non-uniform market
for wireless service in Missouri. The prohibition does not include
state courts having jurisdiction over land use, planning, or zoning
decisions made by an authority. The prohibitions include:

(a) Requiring an applicant to submit information about or evaluate
an applicant’s business decisions with respect to its designed
service, customer demand for service, or quality of its service to
or from a particular area or site;

(b) Evaluating an application based on the availability of other
potential locations for the placement of wireless support
structures or wireless facilities including, without limitation,
the option to add wireless infrastructure to existing facilities
instead of constructing a new wireless support structure or for
substantial modifications of a support structure or vice versa;

(c) Dictating the type of wireless facilities, infrastructure, or
technology to be used by the applicant by requiring an applicant to
construct a distributed antenna system in lieu of constructing a
new wireless support structure;

(d) Requiring the removal of existing wireless support structures
or wireless facilities, wherever located, as a condition for
approval of an application;

(e) Imposing environmental testing, sampling, or monitoring
requirements or other compliance measures for radio frequency
emissions on wireless facilities that are categorically excluded
under the Federal Communications Commission’s rules for radio
frequency emissions under 47 CFR 1.1307(b)(1) or other applicable
federal law;

(f) Establishing or enforcing regulations or procedures for RF
signal strength or the adequacy of service quality;

(g) Rejecting an application in conformance with 47 U.S.C. Section
332(c)(7)(b)(4), in whole or in part, based on perceived or alleged
environmental effects of radio frequency emissions;

(h) Imposing any restrictions with respect to objects in navigable
airspace that are greater than or in conflict with the restrictions
imposed by the Federal Aviation Administration;

(i) Prohibiting the placement of emergency power systems that
comply with federal and state environmental requirements;

(j) Charging an application fee, consulting fee, or other fee
associated with the submission, review, processing, and approval of
an application that is not required for similar types of commercial
development within the authority’s jurisdiction. Fees imposed by
an authority for or directly by a third-party entity providing
review or technical consultation to the authority must be based on
actual, direct, and reasonable administrative costs incurred for
the review, processing, and approval of an application. In no case
should total charges and fees exceed $500 for a collocation
application or $1,500 for an application for a new wireless support
structure or for a substantial modification of a wireless support
structure. An entity with jurisdiction or any third-party entity
cannot include within its charges any travel expenses incurred in a
third-party’s review of an application, and in no event can an
applicant be required to pay or reimburse an authority for
consultation or other third-party fees based on a contingency or
result-based arrangement;

(k) Imposing surety requirements, including bonds, escrow
deposits, letters of credit, or any other type of financial surety,
to ensure that abandoned or unused facilities can be removed unless
the authority imposes similar requirements on other permits for
other types of commercial development or land uses;

(l) Conditioning the approval of an application on the applicant’s
agreement to provide space on or near the wireless support
structure for authority or local governmental services at less than
the market rate for space or to provide other services via the
structure or facilities at less than the market rate for the
services;

(m) Limiting the duration of the approval of an application;

(n) Discriminating or creating a preference on the basis of the
ownership, including ownership by the authority, of any property,
structure, or tower when establishing rules or procedures for
siting wireless facilities or for evaluating applications;

(o) Imposing any requirements or obligations regarding the
presentation or appearance of facilities including, but not limited
to, those relating to the kind or type of materials used and those
relating to arranging, screening, or landscaping of facilities if
the requirements are unreasonable;

(p) Imposing any requirements that an applicant purchase,
subscribe to, use, or employ facilities, networks, or services
owned, provided, or operated by an authority, in whole or in part,
or by any entity in which an authority has a competitive, economic,
financial, governance, or other interest;

(q) Conditioning the approval of an application on, or otherwise
requiring, the applicant’s agreement to indemnify or insure the
authority in connection with the authority’s exercise of its police
power-based regulations; or

(r) Conditioning or requiring the approval of an application based
on the applicant’s agreement to permit any wireless facilities
provided or operated, in whole or in part, by an authority or by
any entity in which an authority has a competitive, economic,
financial, governance, or other interest, to be placed at or
connected to the applicant’s wireless support structure;

(2) Allows authorities to continue to exercise zoning, land use,
planning, and permitting authority within their territorial
boundaries with regard to the siting of new wireless support
structures, requirements, and with regard to applications for
substantial modifications of wireless support structures. The
authority must review, within 120 days of receiving an application
to construct a new wireless support structure or within the
additional time as may be mutually agreed to by an applicant and an
authority, the application as to its conformity with applicable
local zoning regulations and advise the applicant in writing of its
final decision to approve or disapprove the application.
Applications will include a copy of a lease or other agreement from
the property owner evidencing a right to pursue the application.
The authority must, within 120 days of receiving an application for
a substantial modification of wireless support structures, review
the application as to its conformity with applicable local zoning
regulations and advise the applicant in writing of its final
decision to approve or deny the application. Procedures for
extending these deadlines and fixing deficiencies are also
specified in the bill. A party aggrieved by the final action of an
authority or its inaction may bring an action for review in any
court of competent jurisdiction;

(3) Requires an application for additions to or replacement of
wireless facilities to be reviewed for compliance with applicable
building permit requirements. Applications will include a copy of
a lease or letter or agreement from the property owner evidencing
the applicant’s right to pursue the application. The authority
must, within 90 days, review the application as to its conformity
with applicable building permit requirements and consistency with
the provisions of the act and advise the applicant in writing of
its final decision to approve or deny the application. However,
procedures for expediting or extending the deadline and for fixing
deficiencies are also specified in the bill. With regard to
collocation applications the overall deadline is 45 days with
procedures for notification and remedy of deficiencies specified in
the bill;

(4) Specifies that the provisions of the bill do not authorize an
authority, except when acting solely in its capacity as a utility,
to mandate, require, or regulate the placement, modification, or
attachments of any new wireless facility on new, existing, or
replacement poles owned or operated by a utility or expand the
power of an authority to regulate any utility;

(5) Prohibits an authority from instituting a moratorium on the
permitting, construction, or issuance of approval of new wireless
support structures, substantial modifications of wireless support
structures, or attachments to existing facilities of wireless
communication infrastructure if the moratorium exceeds six months
and if no good cause is shown. A moratorium must not affect
pending applications;

(6) Prohibits an authority from charging a wireless service
provider or wireless infrastructure provider any rental, license,
or other fee to locate a wireless support structure on an
authority’s property in excess of the current market rates for
rental or use of similarly situated property. An authority may not
offer a lease or contract to use public lands to locate a wireless
support structure on an authority’s property that is less than 15
years in duration. A process for the resolution of any disputes
over fair market value lease payments using appraisers appointed by
both parties is also specified in the bill; and

(7) Prohibits applicants for wireless facility permits from having
the power of eminent domain or the right to compel any private or
public property owner, the Department of Conservation, or the
Department of Natural Resources to lease or sell property or locate
wireless facilities on existing structures.

Here is a link to the full text of the Bill:  CLICK HERE.

I know of no other enacted legislation so far reaching to exclude local participation in the wireless siting process.

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It’s Official: FCC Approves the Marriages of Softbank+(Sprint+Clearwire)

Posted on by Dr. Jonathan L. Kramer

softsprintlogoTo nobody’s surprise, the FCC has approved the Softbank+(Sprint+Clearwire) deals.  Here’s the press release just sent by Sprint…or should I say, SoftSprint:

Federal Communications Commission Approves SoftBank’s Investment in Sprint and Sprint’s Acquisition of Clearwire

OVERLAND PARK, Kan., BELLEVUE, Wash. & TOKYO (BUSINESS WIRE), July 05, 2013 – The Federal Communications Commission announced today that it has voted unanimously to approve the applications filed by SoftBank (TSE: 9984), Sprint (NYSE: S) and Clearwire (NASDAQ: CLWR) related to their transactions announced last year.

This decision completes all Federal government reviews of both SoftBank’s investment in Sprint and Sprint’s acquisition of Clearwire. Sprint’s shareholders approved the SoftBank transaction with Sprint on June 25th. Clearwire’s shareholders are scheduled to vote on the Sprint transaction with Clearwire, which has been recommended by Clearwire’s Board of Directors, on July 8th.

“We would like to thank Acting Chairwoman Clyburn, Commissioners Rosenworcel and Pai, as well as the staff of the FCC for their thorough review of these transactions,” said Sprint CEO Dan Hesse. “Just two years ago, the wireless industry was at the doorstep of duopoly, but with these transformative transactions, we are one step closer to a stronger Sprint which will better serve consumers, challenge the market share leaders and drive innovation in the American economy.”

“We appreciate the forward thinking, consumer focused stance the FCC has taken by approving the proposed transaction. As the company that built America’s first nationwide 4G network, Clearwire looks forward to joining Sprint and deploying an even faster and richer 4G experience for consumers across the country,” said Clearwire CEO and President Erik Prusch. “This is the right transaction at the right time to best deploy Clearwire’s spectrum to create a broadband network that will bring additional services and alternatives to wireless consumers.”

“The FCC’s thoughtful review and approval of these transactions represents an important step toward creating a more competitive U.S. wireless marketplace,” said SoftBank Chairman & CEO Masayoshi Son. “SoftBank’s investment in Sprint will bring innovation and increased customer focus, which will enable us to begin creating a true competitor in a market dominated by two companies. We look forward to leveraging the significant talent and resources of the New Sprint to bring innovation and better service to U.S. consumers.”

Sprint, Clearwire and SoftBank anticipate that the transactions will close in early July 2013, subject to the remaining closing conditions.

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Bye-bye Sprint Nextel…Hello SoftSprint!

Posted on by Dr. Jonathan L. Kramer
softsprintlogo
Yes, this is a parody logo. You wondered?

Sprint Nextel is now a part of SoftBank.

Sprint reports that about 98% of its shareholders voted for the deal. The FCC approval seems like it will be pro forma.

Now, with the SoftSprint and SprintClear deals done, I suspect Dan Hesse is considering when and how he’ll exit SoftSprint, if he hasn’t already already worked out the details of that deal with Masayoshi Son.

Actually, I’d bet Dan’s exit plan is already set down on paper, and it says something like, ‘Dan, thanks for the hard work.  We’ll have you stay on as a special consultant to SoftSprint for the next three years…yeah, we’ll call it a consulting gig.  You’ll start about two weeks after the FCC approves the deal.  Something like $5M a year, plus a really nice parting gift.’

At least Dan will be able to keep his SAG-AFTRA membership.  Maybe part of the consulting gig will be that Dan keeps on making commercials for his new boss.

Here’s Sprint’s press release from this morning:

OVERLAND PARK, Kan. (BUSINESS WIRE), June 25, 2013 – Sprint Nextel Corporation (“Sprint”) (NYSE: S) shareholders voted today to approve and adopt the previously announced merger agreement providing for a substantial investment by SoftBank Corp. (“SoftBank”) (TSE: 9984). Sprint shareholders overwhelmingly approved the deal, with approximately 98 percent of the votes cast at today’s special shareholders meeting voting in favor of the merger agreement, representing approximately 80 percent of Sprint’s outstanding common stock as of April 18, 2013, the record date for the special meeting.

“Today is a historic day for our company, and I want to thank our shareholders for approving this transformative merger agreement,” said Sprint CEO Dan Hesse. “The transaction with SoftBank should enhance Sprint’s long-term value and competitive position by creating a company with greater financial flexibility.”

Consummation of the Sprint-SoftBank transaction remains subject to the receipt of the Federal Communications Commission approval. Sprint and SoftBank anticipate the merger will be consummated in early July 2013.

As previously announced, Sprint stockholders will have the option to elect to receive cash in the amount of $7.65 or one of New Sprint common stock for each share of Sprint common stock owned by them (subject to the previously disclosed proration provisions in the merger agreement). The total cash consideration available to Sprint stockholders is $16.64 billion. Pro forma for the transaction, the current Sprint stockholders’ resulting equity ownership in a stronger, more competitive New Sprint will be 22 percent while SoftBank will own approximately 78 percent. Sprint and SoftBank have previously mailed to Sprint shareholders forms of election and related instructions and established 5:00 p.m., New York time, on July 5, 2013 as the election deadline, subject to extension.

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