Although the . . . → Read More: FCC Shot Clock Affirmed by 5th Circuit]]> Yesterday, the 5th Circuit Court of Appeals denied the FCC Shot Clock appeal promoted by the City of Arlington, Texas and the City of San Antonio, Texas. For the foreseeable future, the Shot Clock will remain with us. Here is the decision: CITY OF ARLINGTON, TEXAS; CITY OF SAN ANTONIO, TEXAS v. FCC.

Although the Mayan Calendar predicts the end of the world on December 21st, 2012, it seems unlikely that the FCC Shot Clock will be the cause. It also seems unlikely that a petition for Certiorari will be favorably reviewed by the U.S. Supreme Court given the nature of the ruling, and the lack of a split among the various Circuits.

This appeal grew out of the FCC’s adoption of its wireless tower siting Shot Clock rule in 2009 (click here to read the FCC’s Shot Clock Declaratory Ruling) setting deadlines for governments to process to a decision wireless site applications “within a reasonable period of time” (see 47 U.S.C. § 332(c)(7)(B)(ii).

In its ruling, the FCC interpreted Congressional intent regarding § 332(c)(7)(B)(ii) to define the reasonable time as being 90 days for a collocation site, and 150 days for a new site and other types of applications. 47 U.S.C. § 332(c)(7)(B)(v) requires that when there is a failure to act on an application within the applicable time period, the aggrieved party (usually the carrier) should file a suit with a court of competent jurisdiction within 30 days and that “[t]he court shall hear and decide such action on an expedited basis.”

So, what does this mean for local governments? Likely not too much for now.

Most local governments, since the Commission’s adoption of the Ruling, have taken the order in stride and tried to comply. Most carriers have done the same thing. Most times, when the 90 or 150 day clock was about to run out, the carrier and government would enter into a tolling agreement (by mutual agreement to stop the Shot Clock where it was, so that everyone would have some breathing room to keep working on a project).

Why are tolling agreement needed? Even the Commission recognized the value of such agreements when it said,

We conclude that a rigid application of this cutoff to cases where the parties are working cooperatively toward a consensual resolution would be contrary to both the public interest and Congressional intent. Accordingly, we clarify that a “reasonable period of time” may be extended beyond 90 or 150 days by mutual consent of the personal wireless service provider and the State or local government, and that in such instances, the commencement of the 30-day period for filing suit will be tolled.

(FCC Shot Clock Order @ 49)

As someone who reviews and processes wireless site applications for many local governments, the most important clock is not 90 or 150 day clocks; it’s the first 30 day ‘application deemed complete’ clock.

The FCC said of this first 30 days,

[A] review period of 30 days gives State and local governments sufficient time for reviewing applications for completeness, while protecting applicants from a last minute decision that applications should be denied as incomplete. Accordingly, we conclude that the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days only if that State or local government notifies the applicant within the first 30 days that its application is incomplete.

(FCC Shot Clock Order @ 53)

Some states, including California, already provide for an initial 30 day review period for application completeness (in California see Gov. Code § 65943). Unlike the California law, however, which ‘resets’ the clock back to zero if an application is returned incomplete within the first 30 days, the FCC shot clock simply stops where it is at the time the incomplete notice is issued. If the local government takes 25 days to review a project for completeness, and returns the application as incomplete on that day, it only has 5 more days to review the project when resubmitted.

Because the FCC first 30 day clock is the toughest to deal with, local governments will be well-served to create carefully-crafted and very detailed applications that make incomplete submissions easy to detect. For an example of a wireless application form that is both detailed and highly structured, take a look at the one I’ve maintained for nearly a decade and which is used in one form or another by various jurisdictions around the country: CLICK HERE.

PRACTICE TIP

I believe that local governments will be best served by a combination of a carefully-crafted wireless siting application facilitating an easy completeness check, coupled with the requirement that wireless site applications only be filed by appointment where legally permissible.

Taking in and reviewing a complex wireless siting project and the underlying thorough siting application and data can take an hour or more.

By requiring appointments, a government planner can allocate sufficient time to take in and review the application at the time it hits the counter. Any facial omissions or errors can be identified during the intake, and the planner can immediately log in the project and simultaneously issue the applicant with an incomplete letter at the same time. This approach will blunt the worst impacts of the 30-day clock by never allowing it to start for facially incomplete or incorrect applications.

♫ ‘A siting we shall go; a siting we shall go…’ ♫

Look for T-Mobile to either buy some second tier carriers, to perhaps do a deal with Sprint (see that posting here).

The FCC has recently released new rules requiring public notice and and opportunity to comment on new Antenna Structure Registration (“ASR”) applications. These new rules, released on December 9th, 2011 are explained by the Commission in the following three paragraphs:

1. In this . . . → Read More: FCC’s New Rules Regarding Migratory Birds]]> Turkey Vultures in Pittsburg, California find this CrownCastle tower very pleasant, indeed!

The FCC has recently released new rules requiring public notice and and opportunity to comment on new Antenna Structure Registration (“ASR”) applications. These new rules, released on December 9th, 2011 are explained by the Commission in the following three paragraphs:

1. In this Order, we take procedural measures to ensure, consistent with the Commission’s obligations under federal environmental statutes, that the environmental effects of proposed communications towers, including their effects on migratory birds, are fully considered prior to construction.  We institute a pre-application notification process so that members of the public will have a meaningful opportunity to comment on the environmental effects of proposed antenna structures that require registration with the Commission.  As an interim measure pending completion of a programmatic environmental analysis and subsequent rulemaking proceeding, we also require that an Environmental Assessment (EA) be prepared for any proposed tower over 450 feet in height.  Through these actions and our related ongoing initiatives, we endeavor to minimize the impact of communications towers on migratory birds while preserving the ability of communications providers rapidly to offer innovative and valuable services to the public.

2. Our actions today respond to the decision of the Court of Appeals for the District of Columbia Circuit in American Bird Conservancy v. FCC. 1 In American Bird Conservancy, the court held that our current antenna structure registration (ASR) procedures impermissibly fail to offer members of the public a meaningful opportunity to request an EA for proposed towers that the Commission considers categorically excluded from review under the National Environmental Policy Act (NEPA).  The notification process that we adopt today addresses that holding of the court.  In addition, the court held that the Commission must perform a programmatic analysis of the impact on migratory birds of registered antenna structures in the Gulf of Mexico region. The Commission is already responding to this holding by conducting a nationwide environmental assessment of the ASR program.  The Commission has also asked the U.S. Fish and Wildlife Service (FWS) to perform a conservation review of the ASR program under the Endangered Species Act  (ESA).

3. Today’s action also occurs in the context of our ongoing rulemaking proceeding addressing the effects of communications towers on migratory birds.  In 2006, the Commission sought comment on what this impact may be and what requirements, if any, the Commission should adopt to ameliorate it.  Evidence in the record of that proceeding and in the record compiled for the programmatic EA indicates, among other things, that the likely impact of towers on migratory birds increases with tower height.  Consistent with that evidence and with a Memorandum of Understanding among representatives of communications providers, tower companies, and conservation groups,6 we require, as an interim measure, that an EA be prepared for any proposed tower over 450 feet in height.  We expect to take final action in the Migratory Birds proceeding following completion of the programmatic EA and, if necessary, any subsequent programmatic Environmental Impact Statement (EIS).

As a practical matter, the process required by the FCC is one that occurs only at the federal level.  If someone wants to install a tower that requires an ASR, then their application will go on public record at the Commission with time for interested members of the public to provide their comments.

Please click on the following link to download the FCC’s order (PDF format): FCC-11-181A1-20111209

Yesterday, October 11th, David Sterman (writing at SeekingAlpha.com) strongly suggested in a well-reasoned piece that Clearwire could go bankrupt by next year.

Mr. Sterman’s arguments about a possible (if . . . → Read More: Is Clearwire Heading to Bankruptcy?]]> Five days ago I wrote about Sprint effectively casting off Clearwire to sink or swim on its own.  Perhaps I could have said, “sink or sink.”

Yesterday, October 11th, David Sterman (writing at SeekingAlpha.com) strongly suggested in a well-reasoned piece that Clearwire could go bankrupt by next year.

Mr. Sterman’s arguments about a possible (if not likely) Clearwire bankruptcy ring true in my ears.  He said in part,

In 2011, things got messier. Clearwire had always counted on generous financial support from its largest customer, Sprint Nextel (NYSE: S). (Sprint has made serial capital injections in Clearwire and now owns 48%, controlling 54% of the voting stock.) But Sprint has begun to express regret about pinning its 4G hopes on Clearwire’s network. Once Sprint started to make its own 4G network — using the stronger LTE technology — it was almost a matter of time before it announced a public divorce. In a meeting with analysts on Friday, Oct. 7, Sprint said it would soon stop selling phones that work in conjunction with Clearwire’s 4G network. This caused Clearwire’s stock to fall 30% that same day. And the selling may just be beginning…

Mr. Sterman’s focus on the numbers tells the test of the (sad) story:

Where does this leave Clearwire? The company had 7.7 million customers at the end of the second quarter, of which 80% came through Sprint’s enterprise-level relationships. Clearwire has also been pursuing retail customers through its direct sales efforts (at a cost of about $300 per subscriber in marketing expenses). This summer, management spoke of a full-year target of 10 million customers. But now, after Sprint’s  announcement, it’s not clear how Clearwire intends to draw the additional 2.3 million customers. In addition, the retail wireless business is fiercely competitive, which is why other Clearwire partners such as T-Mobile are also looking for an exit strategy.

Well, at least Clearwire’s frequencies will have some value in a buy-out before BK, or to an auction winner in BK.

Go read Mr. Sterman’s post.  Make up your own mind.

(Thanks for John Pestle, Esq. of the Varnum Law Firm  for pointing me to Mr. Sterman’s article.)

With $15M of new strand-mounted WiFi access point equipment supplied by BelAir Networks, this new network is apparently intended to provided wide area WiFi coverage in TWC’s service areas.

Presently, TWC’s SoCal deployment is spotty . . . → Read More: TWC Deploys WiFi in SoCal]]> Coming to (or already arrived at) a utility pole really near you in Southern California…  Time Warner’s new WiFi system!

With $15M of new strand-mounted WiFi access point equipment supplied by BelAir Networks, this new network is apparently intended to provided wide area WiFi coverage in TWC’s service areas.

Presently, TWC’s SoCal deployment is spotty at best, but this is just the beginning:

So, you’d like to see what the BelAir wireless access points look like installed in SoCal?  Here are two photos taken in Santa Monica by yours truly:

TWC WiFi Access Point on Montana Avenue in Santa Monica

TWC WiFi Access Point on Wilshire Boulevard in Santa Monica

Belair Networks web site points to an interesting piece on the new network posted at FierceWireless: it’s worth reading.

Of course, a few tiny technicalities pop into my head with this deployment.

First, since this is not a cable service, and this is not a personal wireless service, under what regulatory authority does a statewide cable TV franchisee (like, for example, Time Warner) install these wireless access points in the public right-of-way?

Another interesting issue is that I’ve been saying for years that cable operators have to do away with subscriber drop cables.  Is this the door-opener for a last mile (really, last 100 feet) drop cable replacement?  Given that the node locations only cover a couple of blocks around the access point (I’ve checked by measuring signal strength on the SSID “TWCWifi”), the coverage v. capacity trade off looks favorable.

Wireless drops mean no more…well, fewer at least…truck rolls.  This is because in a wireless drop environment most new service installs and disconnects will required the subscriber to pick up and return the box to the cable office.  And without aging cables inside walls going bad, cable service quality should/may should be enhanced.

But wireless drops also require a switched channel selection process for most channels, especially for the lesser viewed channels, coupled with multicasting for the most commonly viewed non-premium channels.

It’ll be interesting to see the reactions of those who are concerned about or opposed to ANY wireless site RF proliferation given the signal strength involved versus the fact that these radios will be in installed residential area front yards, back yards, and side yards just feet from occupied structures.

The cable world is certainly changing…it’s becoming wireless, too.

Case No. 1:11-cv-01560, assigned to Hon. Ellen S. Huvelle

25 pages.

CLICK ON THE LINK BELOW TO DOWNLOAD THE COMPLIANT IN PDF FORMAT (about 1 MB)

ATT_Tmobile_Complaint

According to Maisey’s story, the interesting AT&T document showed that if the Commission approves the proposed T-Mobile merger, AT&T will expand . . . → Read More: It’s the Money, Stupid!]]> In a copyrighted story that appeared in the 8/11/11 edition of Wireless Week, Maisey Ramsay wrote about an AT&T/T-Mobile merger document that appeared on the FCC’s web site, and then disappeared few hours later.

According to Maisey’s story, the interesting AT&T document showed that if the Commission approves the proposed T-Mobile merger, AT&T will expand its high speed data network to rural areas beyond that which they’ve already agreed to serve.

This is an interesting revelation given that the wireless carriers have claimed that its local governments that have stymied their growth through right-of-way regulations that they assert block deployment.

Yeah, right.

Of course we know that those carrier-claims are hollow, and that smaller communities go begging for modern celular/PCS/LTE/AWS services and high speed wireless internet

According to the article:

“AT&T senior management concluded that, unless AT&T could find a way to expand its LTE footprint on a significantly more cost-effective basis, an LTE deployment to 80 percent of the U.S. population was the most that could be justified,” AT&T counsel Richard Rosen stated in the letter.

The company said its merger with T-Mobile would spread the cost of the LTE expansion over a larger revenue base, allowing it to “better absorb the increased capital investment and lower returns associated with deploying LTE to over 97 percent of the U.S. population.”

Thanks, Richard…  You’ve confirmed what we’ve known, and what the Commission needs to know.

It’s all about the money…the carriers’ money…

…and not about claims that it’s the local governments are blocking deployment.  It’s the money, stupid!

-Jonathan

Certainly, Sprint’s initiative to deploy a new technology scheme that allows others to sublease transmission capacity at Sprint sites changes the game for everyone, especially site landlords with legacy leases that don’t . . . → Read More: Sprint’s Network Vision Project – A Game Changer]]> I’ve already typed a bit about Sprint’s Network Vision project from the perspective of landlords, but this topic certainly deserves much more coverage.

Certainly, Sprint’s initiative to deploy a new technology scheme that allows others to sublease transmission capacity at Sprint sites changes the game for everyone, especially site landlords with legacy leases that don’t bar non-physical subleases.

With the confirmation that Sprint and LightSquared have inked a deal for Sprint to use Network Vision sites to deploy LightSquared LTE transmissions (for $9B, thanks so very much), and the in-place deal for Sprint to host Cox’s PCS services, the Network Vision project is turning out to be the vehicle that will transmute Sprint into a carrier for carriers, as as well as a competitor to its carrier customers.

I’m betting it’ll be interesting to see how the law suits pan out if Sprint’s network ever crashes for its carrier customers, but not for its own Sprint and Nextel customers.

From a planning perspective, how this type of collocation is permitted will be interesting, if it’s even disclosed to the local government.  This new deployment scheme will have a huge impact on significant gap determinations and least intrusive means analysis, since it’s foreseeable that the carriers won’t want to disclose (all) relevant information about this type of shared use.

We’ll see…

U.S. Senate Bill 911, introduced by Sen. Jay Rockefeller (D-WV) and Sen. Kay Bailey Hutchison (R-TX) would completely disrupt the process of rational tower siting for collocation purposes. Section 528(a) of S. 911 says, in relevant part:

SEC. 528. WIRELESS FACILITIES DEPLOYMENT.

(a) FACILITY MODIFICATIONS.—

(1) IN GENERAL.—Notwithstanding section 704 of the . . . → Read More: Senate Bill 911: Would Require Mandatory Collocation]]> IMMEDIATE ACTION REQUIRED!

U.S. Senate Bill 911, introduced by Sen. Jay Rockefeller (D-WV) and Sen. Kay Bailey Hutchison (R-TX) would completely disrupt the process of rational tower siting for collocation purposes.   Section 528(a) of S. 911 says, in relevant part:

SEC. 528. WIRELESS FACILITIES DEPLOYMENT.

(a) FACILITY MODIFICATIONS.—

(1) IN GENERAL.—Notwithstanding section 704 of the Telecommunications Act of 1996 or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower that does not substantially change the physical dimensions of such tower.

(2) ELIGIBLE FACILITIES REQUEST.—For purposes this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower that involves—

(A) collocation of new transmission equipment;
(B) removal of transmission equipment;
(C) replacement of transmission equipment.

Simply put, if there’s a tower there now, and another carrier (or even the same carrier) wants to collocate, remove, or replace “transmission equipment” (whatever the industry wants that term to mean), then S.911 would require that “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower that does not substantially change the physical dimensions of such tower.”

Would anyone like to tell how big a change is required before it becomes a ‘substantial change to the physical dimensions of the tower?

No, I didn’t think so, but I suspect the wireless industry would suggest that a 33% to 50% change would be less than substantial.

Like so much legislation pushed by the wireless industry, the (un)intended consequences to such broad language could result in collocations that result in currently camouflaged towers losing their camouflage.

Here’s a little photo simulation I created to show you what I’m talking about (warning: This is a LARGE file so give it sufficient time to load, especially if you’re on a slow connection):

(This is a base photo of a wireless flagpole site.)

Do we really want to see wireless carriers have the federal right to do this because of mile-wide loopholes in the current language?  Nope.

S.911 cleared Committee last week, and is now on the floor of the Senate.

NOW IS THE TIME TO CONTACT YOUR SENATORS TO VOICE YOUR OPPOSITION TO S.911 AS LONG AS IT CONTAINS SECTION 528(a).

To find your Senator, CLICK HERE. (Opens a NEW window.)