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

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

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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Will T-Mobile or Dish Eat a Bug?

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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T-Mobile’s Clever Way to Camo a Polish Cell Site

T_MoPolandN50_4.5578E19-44.0665_20110906_DSC_0208What better way for T-Mobile to promote its wireless service than to turn a cell site into a billboard advertisement for T-Mobile’s wireless service. It’s kind of a ‘two-fer.’

This billboard/cell site is located west of the Morawica area of Poland, just west of John Paul II International Airport (the Krakow, Poland Airport) on E462.

You can click on the photograph to enlarge it to full size.  I shot this photo during my trip to Central Europe in September, 2011.

Shameless promotion: I have thousands of high resolution photographs of wireless communications sites and components online at CellTowerPhotos.com. My wireless site photographs regularly grace magazine covers and illustrate articles. They also served to illustrate the National Geographic Magazine article on camouflaged cell tower sites, “Cell Phonies” (September 2007).

Photograph Copyright © 2011 Jonathan Kramer. All rights reserved.

-Jonathan

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Sprint to Clearwire: How ’bout a Bigger Dowry?

cleardishbrokenlogoSo, in the latest chapter of the SoftSprint-Clearwire-Dish matrimonial saga, it looks like SoftSprint will indeed take Clearwire to the alter.

Yesterday, Sprint (which had sued Clearwire just three days before to block the sale to Dish) decided to up its offer from $3.40 to $5.00, topping Dish’s offer of $4.40.

Just to make sure that Clearwire doesn’t take the ring off the finger one more time, Sprint’s amended marriage proposal contract with Clearwire provides for Clearwire to pay Sprint a break-up fee of $115 million should Clearwire get cold feet…again.

I have to imagine that there were some very interesting conversations between Japan and Kansas about what would happen to the value of the SoftSprint deal if Clearwire went off and married Dish.  Soft needs Clearwire’s frequency allotments to make its Sprint purchase ‘reasonable’…it didn’t need cash nearly as much.  Soft so much as signed that point exactly when it made noises yesterday about making a run for T-Metro if the SofSprint deal collapses.

Lest anyone be unclear:

  1. Clearwire is all about licensed frequencies for LTE; not WiMax, facilities or customers;
  2. Sprint only makes sense with Clearwire’s licensed frequencies; forget about the cash;
  3. SoftSprint only makes sense with Sprint’s sites being upgraded to Network Vision and getting control of Clearwire’s licensed frequencies.

There you go!

 

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T-Mobile MetroPCS Deal Done – Closing on May 1

t-metroMetroPCS’s shareholders approved the merger with T-Mobile.  The deal is sealed, and should close within the next 7 days.

For (1) most MetroPCS cell site landlords, (2) a few T-Mobile landlords, and (3) likely all landlords with a MetroPCS and T-Mobile lease atthe same site, you should start planning for the early termination of a lease…and that income.

More to follow.

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FCC OKs T-Mobile/MetroPCS Merger: Free Lease Analysis for Landlords

t-metroThe FCC voted to approve T-Mobile’s application to acquire MetroPCS.

The next step–and perhaps the last real hurdle before the merger can be completed–is an affirmative vote of MetroPCS shareholders during a scheduled April 12 shareholders meeting.

For MetroPCS site landlords, this is a major step towards the shuttering of some 10,000 MetroPCS sites.  See my story on this from last November.

Most likely, the earliest hits will occur to cell sites that presently have both MetroPCS and T-Mobile leases.   The likely next round will be for MetroPCS sites located near existing T-Mobile sites. Finally, it’s quite likely that some T-Mobile sites will be shuttered where an existing collocated or nearby MetroPCS site will better suit the needs of the merged company.  This may well be the case if you area a T-Mobile site Landlord currently receiving an ab0ve-market rental rate, and a suitable nearby MetroPCS site is available for joint use.

Is your existing cell site lease and income at risk? No-charge lease analysis for MetroPCS and T-Mobile Landlords.

If you are presently a MetroPCS or T-Mobile site Landlord, Telecom Law Firm, P.C. is offering a no-charge, no obligation lease review to help you quantify your risk,  prepare for possible site termination, and develop strategies to deal with the outgoing carrier.   Just give us a call toll-free on 855-CELL SITE (855-235-5748 ) and let’s talk.  You won’t be on the clock.

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T-Metro Says It Will Shutter 10,000 MetroPCS sites if…

…their merger is approved by the federal government. This represents about 87% of all of the MetroPCS sites, excluding the DAS nodes. MetroPCS estimates that this will save them…really, T-Mobile…about $7B in site lease costs.

Doing some back-of-the-napkin calculations based on a 25 year average term, a $7B savings would work out to average blended going forward monthly rent of $2,333. Over a 30 years term, monthly rent drops out to about $1,944, blended. Frankly, this that sounds high to me, but perhaps my napkin is a bit wet.

MetroPCS’s announcement also alludes to an interesting technology conclusion: T-Mobile is satisfied with the bulk of its existing coverage from its existing sites.  It must believe that it can take MetroPCS’s bandwidth and redeploy it from T-Mobile’s existing sites, most likely using upgraded base transceiver/telecommunications station (“BTS”) cabinets.  For the non-technical of you reading this, this means that the MetroPCS acquisition is a bandwidth/capacity play; not a coverage play.

Without the passage of Section 6409(a), this pending deal might not have happened.  We’ll see how the constitutional challenges to Section 6409(a) impact this deal.

MetroPCS’s announcement is yet another cautionary tale to potential wireless site landlords…

Wireless site landlords are most often bound to lease for 25 to 30 years with few, if any, real ‘outs.’  Conversely, the typical tenant ‘outs’ in a lease make their side of the deal really only a 30 day guarantee (if you’re lucky you might get 6 months).

For those of you who are considering entering into new leases, you are best served to carefully evaluate whether a 30 year v. 30 day commitment makes real sense.  If not, then keep negotiating.  If you are a wireless site landlord with a tenant requesting a renewal, extension, or modification, this is the time to negotiate a meaningful termination clause.  This is what we tell our clients, and what we do for our clients.

We also tell our clients, ‘Sometimes the best deal is the one you walk away from.’

Food for thought on this Thanksgiving.

-Jonathan

 

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Did Sprint+Network Vision-Lightsquared = Sprint+Clearwire+Softbank?

I’ve been thinking about why Sprint has now decided to sell itself to Softbank.

It seems to me that one possible answer would be to blame Clearwire and then LightSquared.

Clearwire was to be Sprint’s first (but not last) 4G answer, but WiMax never took off.  In fact, the only thing about Clearwire that took off were some of its major investors, like Google looking elsewhere to invest and actually make money on the investment.

Comes then Lightsquared, with its grand plan to deploy 4G services to various existing carriers using a very odd frequency band adjacent to the widely-relied upon GPS downlink band.   Sprint loved its new 4G provider, especially since Lightsquared was to pay $9 billion-ish to Sprint to use the new Network Vision platform.  While Lightsquared would be free sell its services through other carriers, it would be in a sense captive to Sprint since it would be a major network platform provider for Lightsquared’s services.  It seems clear that Sprint’s Network Vision project moved forward, certainly in significant measure because of Lightsquared’s funding commitment.

Then came that nasty little GPS interference problem and sunk Lightquared, and resulted in a bankruptcy filing.

Sprint was left holding a $9 billion bag looking for another funding source for Network Vision.  Before Softbank, no major replacements had stepped up.  Sprint began shuttering Nextel sites as quickly as they could to reduce that ongoing lease load while pushing new Network Vision sites out into the field.

Not fast enough, apparently.

Now comes Softbank to offer up a huge capital infusion and other goodies for a 70% stake in Sprint.  And, Softbank is eyeing Sprint’s nearly-kaput first 4G love, Clearwire.  Word on the street is that Sprint, tracking Softbank’s longing eye, will try to take actual control of Clearwire, which was something denied it by the original investment agreement that kept Clearwire as a separate entity from Sprint.  That would certainly make Sprint’s current love very, very happy.

One thing for sure: The T-Mobile+MetroPCS and Softbank+Sprint+Clearwire equations equal big trouble for the rapidly-disappearing smaller regional wireless carriers.

It would not surprise me to see virtually no regional carriers, and only four major wireless carriers in the U.S.: Verizon, AT&T, T-Metro, and SoftSprint.  Following, I envision a T-Metro split-up shortly after it figures out that all it did was to replicate the dumb Sprint Nextel technically incompatible deal that started Sprint’s slide into the current Softbank sale.

Then there would be 3.   Then you’ll hear the pin dropping on the table.

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Jonathan Atkin on the pending T-Metro marriage

Jonathan Atkin analyzes the wireless sector for RBC Capital Markets, LLC.

Better put, Jon dissects the wireless sector, looking at the players, numbers, and technologies in multiple contexts and from multiple angles spotting nuances leading to a much deeper and more complete worldview of wireless.

I have had the pleasure of hearing Jon present at several AGL regional conferences, and I always walk away from his presentations with a much keener view of the wireless industry and its direction(s).

Jon released a research report a few days ago on the pending T-Metro marriage that is well worth reading and understanding. He summarizes his research this way:

Our initial take is that a potential business combination between T-Mobile and MetroPCS is of dubious merit for Deutsche Telekom under business conditions and public-market valuations. We expect few regulatory barriers to such a deal, and believe Sprint could benefit competitively.

Jon points out that the proposed T-Metro intermarriage is one of different transmission technology religions. This rules out quick systems’ integrations and synergies as each partner will continue to practice its own signal transmission religion for for foreseeable future. He cites Sprint as a much more suitable marriage partner for MetroPCS given that both of them practice the same signal transmission technology religion. (Hey, it’s my metaphor…go with it.)

Not mentioned in Jon’s analysis is that with Sprint’s deployment of its Network Vision project, that firm will be in a much better position to rapidly deploy MetroPCS services from the new Network Vision sites. This would allow Sprint to shutter some/many MetroPCS sites quickly, substantially reducing site lease rental costs, especially at existing collocated Sprint/MetroPCS sites.

The funny thing is that a Sprint+MetroPCS marriage would be much more likely to succeed compared with the disastrous Sprint+Nextel marriage, which, like the pending T-Metro marriage, is based on each marriage partner practicing a different and incomparable signal transmission religion.

Jon notes that even if the T-Metro marriage is consummated, the new shared life of those partners will be distracting early on in their new union, opening the door for Sprint (and Leap Wireless) to push forward. My gut feeling is that a consummated marriage between T-Mobile+MetroPCS will prompt a Sprint+Leap marriage.

Read Jon’s report by clicking here: Hello, Hello, Hallo – Thoughts on Potential DT/PCS Tie-Up.

Jonathan

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