Category: Wireless Carriers

Look out Dish, T-Mobile Might Have A Better Suitor

Posted on by Dr. Jonathan L. Kramer

Word is that Comcast may make a run to marry T-Mobile, and beat out Dish to the alter.

It is nothing less than brilliant for Comcast AND T-Mobile.  Local governments will have a less favorable view.

Comcast finally gets the quad-play in house, and T-Mobile almost overnight solves its coverage problems in Comcast’s footprint.  Comcast will deploy PCS radios on its strand and in its pedestals, and use its network for backhaul.  It will integrate the shared CableWIFI platform to provide more T-Mobile connectivity outside of Comcast’s footprint.  Comcast will get a wireless video delivery platform.

…and Dish will be stuck with all that upload bandwidth that will decrease in value.

Local governments will find that applying their wireless ordinances to their all-time favorite cable TV franchisee will be, ah, challenging.

Now THIS is going to be fun.

jlk

PS: What should we call the two of them:  T-Cast?  Naw, Brian would never allow his name to be second.  Comobile?  Maybe.

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T-Dish? Mobile-D? Deep Dish Pizza?

Posted on by Dr. Jonathan L. Kramer

Word on the street is that T-Mobile and Dish are talking merger.   Dish has lots of bandwidth but in the wrong direction.  T-Mobile has, well… it’s pink.   And T-Mobile is likely to still have some of the Post-AT&T money.  And it has some bandwidth.  And it’s pink.

Actually might be a very interesting combination.

jlk

PS: I’ll work up a proposed logo real soon now.  It will be pink.

(UPDATE: I have figured out what should be the official name of the joined lovebirds, and a proposed family crest.  See this link)

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T-Mobile v. Roswell Decided: Both Got It Wrong

Posted on by Dr. Jonathan L. Kramer

(Updated 1/21/15: see bottom)

This is a flash report on the Supreme Court decision announced today in T-Mobile v. Roswell penned by Justice Sotomayor.  A detailed analysis will follow.  For now, here is the Syllabus (not part of the decision) followed by a link to the 28-page decision.  The big takeaway: A City need not include any or every reason for denial in the denial letter, but it must make the record and reasons for denial available essentially contemporaneously with the written decision.  Waiting 26 days to issue the reasons for denial after the denial was determined was too long a period.  Justice Alito issued a concurring opinion. CJ Roberts joined by Justice Ginsburg and Justice Thomas, dissented in various parts.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

T-MOBILE SOUTH, LLC v. CITY OF ROSWELL, GEORGIA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 13–975. Argued November 10, 2014—Decided January 14, 2015

Respondent Roswell’s city council (Council) held a public hearing to consider an application by petitioner T-Mobile South, LLC, to build a cell phone tower on residential property. During the hearing, several Council members expressed concerns about the tower’s impact on the area. The hearing ended with the Council unanimously passing a motion to deny the application. Two days later, the City’s Planning and Zoning Division informed petitioner by letter that the application had been denied and that minutes from the hearing would be made available. The detailed minutes were published 26 days later.

Petitioner filed suit, alleging that the Council’s denial was not supported by substantial evidence in the record. The District Court agreed, concluding that the City, by failing to issue a written decision stating its reasons for denying the application, had violated the Telecommunications Act of 1996, which provides that a locality’s denial “shall be in writing and supported by substantial evidence contained in a written record,” 47 U. S. C. §332(c)(7)(B)(iii). The Eleventh Circuit, following its precedent, found that the Act’s requirements were satisfied here because petitioner had received a denial letter and possessed a transcript of the hearing that it arranged to have recorded.

Held:

1. Section 332(c)(7)(B)(iii) requires localities to provide reasons when they deny applications to build cell phone towers. This conclusion follows from the Act’s provisions, which both preserve and specifically limit traditional state and local government authority. It would be considerably difficult for a reviewing court to determine whether a locality’s denial was “supported by substantial evidence contained in a written record,” §332(c)(7)(B)(iii), or whether a locality had “unreasonably discriminate[d] among providers of functionally equivalent services,” §332(c)(7)(B)(i)(I), or regulated siting “on the basis of the environmental effects of radio frequency emissions,” §332(c)(7)(B)(iv), if localities were not obligated to state their reasons for denial. And nothing in the Act suggests that Congress meant to use the phrase “substantial evidence” as anything but an administrative law “term of art” that describes how “an administrative record is to be judged by a reviewing court.” United States v. Carlo Bianchi & Co., 373 U. S. 709, 715. Pp. 6–8.

2. Localities are not required to provide their reasons for denying siting applications in the denial notice itself, but may state those reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial. Pp. 8–13.

(a) Nothing in the Act’s text imposes a requirement that the reasons be given in any particular form, and the Act’s saving clause, §332(c)(7)(A), makes clear that the only limitations imposed on local governments are those enumerated in the statute. Localities comply with their obligation to give written reasons so long as those reasons are stated clearly enough to enable judicial review. Because an adversely affected entity must decide whether to seek judicial review within 30 days from the date of the denial, §332(c)(7)(B)(v), and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.Pp. 8–11.

(b) Petitioner’s contrary arguments are unavailing. The statute’s word “decision” does not connote a written document that itself provides all the reasons for a given judgment. The absence of the word “notify” in the provision at issue also does not signal an intention to require communication of more than a judgment. Nor does an obligation to provide reasons in the writing conveying the denial arise from the “substantial evidence” requirement itself or from the requirement of court review “on an expedited basis,” §332(c)(7)(B)(v). It is sufficient that a locality’s reasons be provided in a manner that is clear enough and prompt enough to enable judicial review. Pp. 11–13.

3. The City failed to comply with its statutory obligations under the Act. Although it issued its reasons in writing and did so in an acceptable form, it did not provide its written reasons essentially contemporaneously with its written denial when it issued detailed minutes 26 days after the date of the written denial and 4 days before expiration of petitioner’s time to seek judicial review. P. 14.

731 F. 3d 1213, reversed and remanded.

Here is the decision in full (28 pages, PDF format): tmobile.v.roswell.13-975_8n6a

Update: Catalina Lehner, the wireless planner par excellence at the City of Albuquerque reminded me that the big winners in this case were, as usual, the lawyers.  So true.

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Permits? We're AT&T and we don't need no stinkin' permits!

Permits? We’re AT&T and we don’t need no stinkin’ permits!

Posted on by Dr. Jonathan L. Kramer

TreasuremadreDobbs: “If you’re the cell phone company where are your permits?”
Gold Hat: “Permits? We ain’t got no permits. We don’t need no permits! I don’t have to show you any stinkin’ permits!”     

     -with apologies to B. Traven and then John Huston

It seems that Ridgewood, New Jersey is non-to-happy with AT&T Wireless at the moment.

Can you guess why?

Well, according to a published report on NewJersey.com, it seems like AT&T Wireless decided that it would forgo actually pulling permits for a COW (Cell on Wheels) which it parked and then set up at a local gas station in town.

A portion of the NewJersey.com new report is telling. . .

According to AT&T’s public relations representative Ellen Webner, the tower, called a cell site on wheels or COW, is “in a temporary location while we work with the local community, zoning, on a permanent location.”

She did not comment when asked to explain why the village was not previously notified by AT&T about the tower.

“We are now working with the town through zoning and going through all proper procedures,” Webner said.

I enjoyed Ms. Webner’s use of the word “now” in that last sentence.

– Read the entire story at THIS LINK.  Opens in a new window.

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Which Way L.A. Explores Cell Tower Siting Issues

Which Way L.A. Explores Cell Tower Siting Issues

Posted on by Dr. Jonathan L. Kramer

whichwaylaWarren Olney, host of Which Way L.A. on KCRW (NPR in Southern California) devoted a segment of today’s program to wireless tower siting.

Titled, “The No Longer Hidden Cost of Wireless Technology” Warren focus on the looming debate about more cell sites closer to their customers.

Richard Stein, a Los Angeles resident with an existing AT&T wireless site on a utility pole in front of his home was interviewed about AT&T’s plans to quadruple the size of the antennas, and to place a controlled environment vault (“CEV”) in the right-of-way near the pole.

AT&T declined to be interviewed for the show regarding its cell site in front of Mr. Stein’s home.

Warren spoke with me about technology and legal issues related to wireless siting, and also about the pending FCC Notice of Proposed Rulemaking that could reshape the entire landscape regarding cell siting regulations in the U.S. We also covered Section 6409(a).

Robert Jystad, the incoming president of the California Wireless Association spoke on why carriers need to bring their services closer to homes and end-users. He gave the facts and figures about the wireless society. He also alluded to, but did not outright say that Mr. Stein’s opposition to AT&T’s plan was for a reason other than aesthetics, which Mr. Stein rejected. As a side note, you might be surprised to learn that I was the one that recommended to the show’s producer, Evan George that Mr. Jystad be interviewed for the segment. It seemed important to make sure an industry voice had the opportunity to weigh in to the discussion.

The 16 minute segment is now on line. You may listen to the audio segment via the show page: http://www.kcrw.com/news/programs/ww/ww131029the_no_longer_hidden

This was a fun experience, and one that I hope will not be my last.

Recommended.

Jonathan

 

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Missouri Cell Tower Industry Driven Laws Struck Down by Judge

Posted on by Dr. Jonathan L. Kramer
Missouri Coat of Arms
Missouri Coat of Arms

According to a published reports, Cole County Circuit Judge Patricia Joyce has issued a permanent injunction and declared the two laws as being invalid.  This follows the preliminary injunction she issued on Aug. 27 staying the laws (HB 331) from taking effect as scheduled the next day.

Judge Joyce ruled that the HB 331 was flawed procedurally, by violating state constitutional provisions that bills contain only one subject that is clearly expressed in its title,  and that lawmakers cannot amend them to change a bills’ original purpose.

Read more here: http://www.miamiherald.com/2013/10/22/3704343/judge-strikes-down-mo-laws-on.html#storylink=cpy

This is great news for local governments in Missouri, which battled against ‘Super 6409 + Super Shot Clock’ rules promoted by AT&T on behalf of the wireless industry.  Hopefully the Missouri Attorney General’s office will not appeal the ruling.  It has until Dec. 2 to make that decision.

For more on HB 331, including the full text of the law, see THIS POST here at CellTowerSites.com.

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Cell Site Denials: 11th Circuit on the “in writing” requirement

Posted on by Dr. Jonathan L. Kramer

Today, in an artfully written decision, the Chief Judge of the 11th Circuit Court of Appeals announced the decision of the court in T-Mobile South, LLC v. City of Milton.

At issue was whether the City’s denial of three cell sites met the “in writing” requirement of 47 U.SC. § 332(c)(7)(B)(iii).

It seems as if it would be a simple matter to determine whether a local government’s decision to deny a cell tower construction permit is “in writing.” After all, everyone knows what “in” means and everyone knows what “writing” means. How much simpler and clearer could the statutory language be? As it turns out, however, those two words as they appear in the statute have been subject to some strikingly different interpretations by other courts of appeals, which are echoed in the parties’ opposing positions in this case.

The short (26 page) decision clearly and in English talks about whether the written decision must, itself, cite the reasons for denial (it does not)

All that statutory provision requires of the denial decision is that it be in writing and be supported by substantial evidence in a written record. Whether the denials in this case were supported by substantial evidence in the written record is not before us, but the existence of that additional requirement necessarily means that there must be reasons for the denial that can be gleaned from the denial itself or from the written record; otherwise, there would be nothing for substantial evidence to support. What is neither expressed nor implied, however, is any requirement that the reasons for a denial must be stated in the letter or some other document that announces the decision, if there is a separate document doing that, or any prohibition against having the reasons stated only in the hearing transcript or minutes.

[Emphasis added.]

Also contained in the decision is a long and interesting decision regarding

 

In interpreting what the words “in writing” mean in § 332(c)(7)(B)(iii), we are reluctant to import into those words, as some of our sister circuits have, “more pragmatic policy values,” MetroPCS, 400 F.3d at 722, than the words themselves bring along, or to take a more “pragmatic, policy-based approach,” Helcher, 595 F.3d at 718, than the plain meaning of those words take. We are interpreting a statute, not designing one. Although we, like most judges, have enough ego to believe that we could improve a good many statutes if given the chance, statutory construction does not give us that chance if we are true to the judicial function. Our duty is to say what statutory language means, not what it should mean, and not what it would mean if we had drafted it.

Quite an interesting decision.  Well worth the read.

Here is the decision: T-Mobile.v.Milton.2013-9-05.201210487

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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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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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