Cal Supreme Court Rules for San Francisco against T-Mobile in PROW Case

Today the California Supreme Court ruled in favor of the City and County of San Francisco, and against T-Mobile and its wireless industry co-parties in a case regarding how a local government can manage the public right of ways in this state.

The decision has, as of this writing, been out for only 15 minutes, so instead of trying to summarize 24 pages, I’ll let you simply start by reading the decision, which is here: S238001.

Our deep-dive analysis will be posted here shortly.   For now, however, Lory Kendirjian (our senior paralegal) reminds me that this decision also settles the question about whether a local government can consider aesthetics when evaluating a permit request subject to PUC Section 7901 (see: Sprint PCS Assets v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716.  In that case, the Ninth Circuit ruling on California state law found no conflict between section 7901 and PVE’s local ordinance that conditioned permit approval on aesthetic considerations. (I served as the technology expert in that case, which was argued by Javan Rad, now Senior Deputy Attorney in the City of Pasadena.)

Congratulations to William Sanders and Erin Bernstein of the CCSF’s City Attorney’s Office, who tried the case on behalf of San Francisco (with yours truly as the City’s wireless expert witness), and to Jeff Melching of Rutan and Tucker.

Jonathan

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Wireless Site Project Plans with Stolen PE Stamps?

With the push to apply for as many cell sites as possible in as short a period as possible, and for the least cost, we’re observing an alarming new situation: the use of Professional Engineer seals and signatures copied onto wireless project plans and related safety documents, all without the knowledge–much less the permission–of the professional engineer.

This is an issue that appears to be happening nationally. Unfortunately, the use of what I’ll call “Stolen Stamps and Signatures” [“SSS”] also known as Stamp Fraud is also not much of a surprise.

The industry pressure to get proposed wireless sites through the local government permitting process as quickly as possible for the fewest dollars seems to have incentivized some wireless industry members to engage in what is, in most states, a violation of law. Specifically, scanning PE stamps and signatures from one set of plans for a project location reviewed and approved by the PE, and than inserting the scanned seal and signature on multiple other project site plans.

Let’s be clear:

SSS endanger the public.  The public, and more directly the local governments that have police powers to protect the public, rely on the fact that an engineer’s PE seal and signature are an assurance of safety code compliance.

SSS are a violation of law in most states.  Most states have laws on the books that make the unauthorized use of a PE stamp an illegal act.  Expect to see stamp fraud referrals to local law enforcement and state PE boards.  Also expect to see planning companies shown to engage in stamp fraud to be disbarred from submitting additional wireless applications for a period of time or forever depending on who in the firm knew what and when.  Disbarment of a firm or person by a government entity can require the disclosure of that fact when a locally-disbarred person or firm bids on state, federal, or military contracts.

SSS costs a registered professional engineer income, and more importantly the loss of professional reputation.  If SSS is discovered by a PE, that PE is placed in the unenviable position of having to decide whether to accept the theft as a cost of doing business with their large clients and eat that cost of the lost work or dropping a dime with the state PE Board.  If the PE does eat it, however, the PE is likely endangering his or her own license by suborning the illegal use of the PE stamp.  I suspect many state PE boards will not look favorably on that intentional head-in-the-sand approach.  Moreover, some jurisdictions may also look at disbarring a particular PE as being unreliable to seal plans and safety documents for the intentional looking away.  As above, disbarment at one level can carry through to other governments and agencies.

SSS hurt the wireless providers. As the breadth of stamp fraud becomes clearer, expect that projects already approved that were submitted by now-known stamp thieves will be brought back for very close scrutiny.  Projects already approved under false pretenses may be subject to revocation, or at least a costly new review.

SSS is likely to change the local permitting process. I expect that as the breadth of this nauseous activity is determined with greater certainty, some or many jurisdictions will require that actual wet stamps and wet signatures be affixed to plans and other safety documents.  This will be a change from the current practice, now questioned, of allowing facsimile stamps and seals to be placed on plans and safety documents.

Our firm’s permitting team, working for many local governments, is coordinating our activities with local governments evaluating whether they have been unlawfully deceived by SSS/stamp fraud.

This is an big issue to follow, and I’ll post about it as events unfold.

Those are my opinions…what are yours?  Let me know via a direct contact message by CLICKING HERE.

Jonathan

Update: April 18, 2019.  The Florida Board of Professional Engineers asked for and received my permission to reprint this post in its official newsletter, the FBPE Connection.  This post, slighted edited by the FBPE, is reprinted in its April 2019 on-line news letter.

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TLF Releases new Small Wireless Facilities Supplemental Application

Big news: TLF has released v. 1.03 of our new Small Wireless Facilities (“SWF”) Supplemental Application form.  This form is available for free to any local government that would like to get a handle on how to better process the deluge of SWF applications hitting right now, and for effectively comply with the (crazy) new FCC rules that went into effect on 1/14/19.

Bigger News: In conjunction with the release of the new SWF SUP-APP, I’ve prepared a short video to walk local governments through how to adapt then use the new form.

I know that other consultants will steal borrow the form for their own clients and pass it off as their own work.  That’s okay since (a) it’s going to happen anyway, and (b) the point is to help local governments who will be hammered by SWF applicants.

To visit the Information and Download page, CLICK HERE.

Enjoy, and please email me copies of the form as you modify it.  I’ll take any good ideas and incorporate them into newer versions of the form.

Jonathan

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House and Senate to FCC: Did the Commission REALLY…

Yesterday (1/30/19) Senators Dianne Feinstein (D-CA) and Richard Blumenthal (D-CT) wrote to FCC Chairman Pai asking for information regarding allegations that FCC staff tried to game the federal judicial system in connection with the current litigation over the Commission’s 5G orders.

The letter opens with the following:

Dear Chairman Pai,

As you know, reports have surfaced that Federal Communications Commission (FCC) staff may have encouraged wireless carriers to file suit against the September 2018 FCC rule on 5G small cell deployment. It has been alleged this was done with the goal of moving litigation out of the Ninth Circuit. What’s worse, there are also allegations that FCC staff may have implicitly threatened licensees that were not helpful. If true, this represents an unprecedented level of coordination between an oversight agency and the entities it regulates for the express purpose of preventing a federal circuit court’s review. We therefore ask you provide additional information about these cases and the FCC’s role in them.

This Senate inquiry follows a 1/24/19 letter to Chairman Pai from the House’s Committee on Energy and Commerce’s Chairman, Frank Pallone, Jr., (D-NJ) and the Chairman of the Subcommittee on Communications and Technology, Mike Doyle (D-PA). That letter included the following:

It has come to our attention that certain individuals at the FCC may have urged companies to challenge the Order the Commission adopted in order to game the judicial lottery procedure and intimated the agency would look unfavorably towards entities that were not helpful. If true, it would be inappropriate for the FCC to leverage its power as a regulator to influence regulated companies to further its agenda in seeking a more friendly court.

Both letters start to dig into what appear to be the hallmarks of a captured federal agency; an agency that may have lost its independence, objectivity, and duty to protect the public in favor of coordinating and protecting with those the agency is charged with regulating, here wireless, telephone, and cable firms.

The allegations, if true, are likely to shake the FCC from top to middle, and also impact (read: scare) other regulated-friendly federal agencies.

The two letters are linked below:

1/30/19 Senate Letter to FCC Chairman Pai

1/24/19 House Letter to FCC Chairman Pai

-Jonathan

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Mo-Mobilitie and Two Major Bob Announcements

Back in October I had a few (or more) rather critical words to say about a Mobilitie presentation at AGL/Kansas City.  Here’s a link to the post: Mobilitie: Fake News; FCC Fines; and Churchill’s Barking Dog.  My aim in that post was clearly on Mr. Jason Caliento, the Executive Vice President of Network Strategy at Mobilitie.

Last week I had the pleasure of attending the AGL/Newport Beach conference, where Mr. Caliento spoke once again.

Things last week were a bit different.  Mr. Caliento’s comments were focused on the progress made by Mobilitie, and a renewed commitment to working with local governments.

I found Mr. Caliento’s comments at AGL/Newport Beach this time to be more subdued, heartfelt, and informative.  More importantly, since October, I’ve seen a continuing positive change and improvement in how Mobilitie staff is addressing planning cases with our clients.  That change and improvement are welcome, and I’m pleased to acknowledge it.  I intended to say those things to Mr. Caliento directly during the Q&A portion of his presentation, but time ran out.

Here’s the first announcement: I’m going to be starting a wireless regulation podcast in coming month. That podcast will be a mix of information and interviews of industry and government wireless policy and thought leaders.  The goal of the podcast is to inform without stooping to a ‘gotcha’ approach. For that reason, I’ll be providing guest with questions and subjects in advance to give the quest time to think about and then provide complete and thoughtful answers. Of course, follow-up questions come as they may.

There’s no name for the podcast yet, so if you have any ideas you’re willing to give to me without strings please send them on to me.  In the meantime, I’ll simply refer to the podcast as “Bob.” That’s the name I tend to use for all new projects that have yet to settle on a final identification.

Here’s the second announcement, and I’m particularly pleased about this: Mr. Caliento has agreed to be my first guest on the initial podcast.

I’ll be posting Bob updates here as we get closer to the initial podcast.  The podcast will immediately be available here, and eventually on one or more of the well-known podcast platforms.

Jonathan

PS: If you’ve got some ideas for people I should interview on Bob, please send them along to me. -jlk

 

 

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HUGE! 10th Cir Denies Stay in FCC Case then Xfers to 9th Cir.

In the ongoing sage of local governments trying to bring sense back to cell siting after the FCC’s industry-driven September Small Wireless Facilities Order, the 10th Circuit today ORDERED that (a) it would not issue a stay of the FCC’s order, but then (b) ORDERED the case to be transferred to the 9th Circuit!

This is HUGE, and places the case exactly where it should have been heard in the first place.  The denial of the stay was by a summary action, without giving a basis.  The transfer order clearly explained why the case properly belongs in the 9th Circuit.

I’ve attached both orders below.

-Jonathan

__190110 Order Denying Motion for Stay

__10th cir order granting transfer to 9th cirFacebooktwitterredditpinterestlinkedinmail

NOKIA’s Phil Twist: “Choose the red pill.”

RCR wireless has an interesting and quite telling post out today (11/30/2018) quoting Mr. Phil Twist, VP of Network Marketing for Nokia.  Speaking at an event titled, “The Great Telco Debate” in London,

Channeling the original Matrix movie blue pill/red pill scene, Mr. Twist is reported to have said that “[t]he US operators have taken the red pill – they’re building networks, even while they’re unsure of the business case. Because one is building, they’re all building.”

Regrettably, assuming Mr. Twist is not twisted in his assessment, then we’re seeing a massive infrastructure invasion into the public rights of way throughout the U.S. on a wing and a prayer.

Perhaps a better quote would have been to channel this fantasy movie clip: If you build it…

Both movies were dark fantasies.  What one will be closer to reality?

JonathanFacebooktwitterredditpinterestlinkedinmail

Mobilitie: Fake News; FCC Fines; and Churchill’s Barking Dog.

Mr. Jason Caliento, the Executive Vice President of Network Strategy at Mobilitie, presented the keynote address and a follow-up discussion at the AGL Summit on September 27, 2018. That Summit was held in Kansas City as an ongoing part of AGL’s (very important for municipal officials and industry personnel alike) lecture series.

I spoke at the AGL Summit on a 5G topic, but that’s not the focus of this post.

Mr. Jason Caliento (left) with Mr. Bryan Tramont.  Photo  Copyright © 2018 by Dr. Jonathan Kramer

The focus of this post is a snippet of about 2 minutes and 40 seconds of the one-on-one follow-up discussion with Mr. Bryan Tramont, Esq., the Managing Partner of Wilkinson Baker Knauer, LLP. The subject of that portion of their exchange was the 2018 Consent Decree between the FCC, Sprint, and Mobilitie. That Decree was adopted and released on April 10, 2018. (CLICK HERE to download and read the Consent Decree.)

In their relatively short exchange, Mr. Caliento managed to claim that there was some sort of ‘fake news’ involvement in the story about Sprint and Mobilitie violating the FCC’s rules; that the ends justified the means; and that Mr. Caliento seems guided by Sir Winston Churchill’s quote, “You will never reach your destination if you stop and throw stones at every dog that barks.” I suppose an apparently intentional program between Mobilitie and Sprint to build sites absent required regulatory permissions is the barking dog in his odd analogy.

Please listen to Mr. Caliento’s comments responding to Mr. Tramont on this topic in its entity.  Then you may decide for yourself what you think of Mobilitie’s and Sprint’s (presumably and hopefully former) approach to regulatory compliance:

Okay. I suppose that’s one way to spin intentionally violating federal regulations because the ends seem to justify Mobilitie’s and Sprint’s means. Further, as for the ends justifying the means, apparently paying the FCC an $11 million dollar fine seems a very small and economical price to Mobilitie and Sprint given the billions Mr. Caliento claims that they have saved (and presumably will save).

I opine that now we know the real fake news.

Jonathan

PS: The next AGL Summit is in Atlanta, Georgia on November 8th. Unfortunately, I won’t be able to attend, but I highly recommend this event to municipal officials who want the real story about what’s happening in the coming 5G world. -jlkFacebooktwitterredditpinterestlinkedinmail

FCC’s “SWFFR” Order and 3rd R&O

As many of you know, last Friday the FCC released a Declaratory Order and 3rd Order and Report, mainly covering the deployment of “Small Wireless Facilities.”   I’m calling these sites ‘SWFFRs’ (Small Wireless Facilities-Federal Rules).

If you haven’t seen the SWFFR order, you can download it below in WORD format.

I’ll have a lot to say about these rules, but not yet.

Jonathan

CLICK BELOW to download the FCC’s SWFFR:

FCC-18-133A1Facebooktwitterredditpinterestlinkedinmail