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Bloomberg BNA on the T-Mobile v. San Francisco Appellate Decision

In her article, “In T-Mobile Wireless Equipment Dispute, San Francisco Wins on Aesthetics” (September 20, 2016) reporter Bloomberg/BNA Lydia Beyoud discusses some of the key impacts of San Francisco’s appellate win in the case.  I provided her with insights and several quotes.  I link the decision to 5G deployment pressures which drive carriers to want to build sites in the public right of way very close to users.

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Mobilitie’s Increased Transparency is Somewhat Opaque

Back on May 27, 2016 Martha DeGrasse of RCR Wireless published a very interesting article titled, “Mobilitie to increase transparency for jurisdictions”.  It’s well worth going back to (re)read her article about how Mobilitie’s President, Christos Karmis said his firm would use its own corporate name with local jurisdictions.

Huh? Use its own name? Why is this a big deal?

Well, this arose out of Mobilitie’s process of using “<INSERT THE STATE NAME> Utility Pole Authority” names with local governments.  Using the word “Authority” as an entity identification in government filings suggests that the entity is, itself, some sort of governmental agency. That’s made clear in Martha’s article.

With Mr. Karmis’s assurance back in May, many of us on the government side thought the hide-the-ball issue was resolved.

Fast forward two months after Martha’s article to July 28, 2016. That’s the date on a letter from Keenan Adamchak, legal counsel for a nifty new entity called “Pole & Fiber Network Authority ME, LLC”, addressed to the Maine Public Utilities Commission.

What did the July letter request on behalf of  the Pole & Fiber Network Authority ME, LLC?  The first paragraph of the letter sets out that

On behalf of Pole & Fiber Network Authority ME, LLC (“Pole & Fiber Network Authority ME,”
or the “Company”), transmitted herewith is the Company’s Application for Authority to Provide
Intrastate Local Exchange Telecommunications Service in the State of Maine.

I suppose Mobilitie, which set up Pole & Fiber Network Authority ME, LLC back in February, is still enamored with being called an Authority.  Given that local governments commonly ask for proof of state authority to operate in those local jurisdictions when an entity seeks local permits and authorizations, names really do count.

It’s my opinion that the Maine application, filed over two months after Mr. Karmis’s comments about transparency, suggests a parallel with another matter of public concern and interest where the words counted:

That’s my opinion. What’s yours?

Jonathan

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California: PUC Sec. 7901/7901.1 Loc. Gov. Aesthetic Control Upheld

Today the California Court of Appeal (1st) affirmed the trial decision in T-Mobile v. San Francisco (San Francisco City and County
Super. Ct. No. CGC-11-510703).*   That decision held that local governments in California have rather broad aesthetic control over wireless facilities in the public right-of-way.

This decision is hot off the press, so a deep analysis will follow.  For now, let the reading begin!

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-Jonathan

* Disclosure: I served as the wireless communications expert witness for the City and County of San Francisco.

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Who are John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher and why are they important?

When Crown Castle was unhappy with a decision by the City of Westfield, Indiana denying a cell site application, they sued Westfield in state court. The case is:

Crown Castle Towers 06-2 LLC v. City of Westfield, Tracy Pielemeier, Ginny Kelleheret al, Case No. 29C01-1511-MI-009308.

Of course Crown Castle sued the City of Westfield.  No surprise there. But Crown Castle through its attorneys took the nearly unheard of step of suing John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher, all of whom spoke out against Crown Castle’s project at a City of Westfield public hearing.

Okay, Crown Castle said in a statement delivered to the local press that they no choice to include John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher in the suit. Hogwash. It was, I believe, a stupid and ill-sighted move to stifle future public comment on matters of public interest, specifically pending cell site applications.

SLAPP and ANTI-SLAPP

I’m not expert on Indiana law, but Indiana has an “ANTI-SLAPP” statute designed to quash law suits filed to stifle political speech in public forums. A SLAPP is a “strategic law suit against public participation” and an ANTI-SLAPP is a law suit to quash the SLAPP.  See the Digital Medial Law Project website for more information on SLAPPs and ANTI-SLAPPs in Indiana.  It seems to me that Crown Castle’s inclusion of John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher in the suit against the City of Westfield amounted to a SLAPP.

Had Crown Castle (or any other similarly-situated plaintiff) included as law suit defendants parties merely testifying against it at a public hearing in California or New Mexico, where I am licensed to practice law, I would have immediately recommended filing an ANTI-SLAPP to dismiss those parties.  They simply wanted their voices to be heard during the public hearing on a matter of public concern. I would have also recommend seeking attorneys fees against Crown Castle on behalf of the SLAPPed defendants.

Apologies are Due

I believe that Crown Castle and its local counsel of record, Matthew Price, Esq., Scott Leisz, Esq., and Joshua Burress, Esq. jointly owe John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher a public apology.  They should also publicly commit to not making law suit defendants out of those who speak against Crown Castle at public hearings.

Sue the public agency for denying a cell site application? Fine. Let the decision stand the test of the Act and other laws.  Sue the public who stand up against Crown Castle at a public hearing? Not fine.

Judge Felix’s April 15, 2016 opinion, remanding the case back for further hearings, can be found HERE.

jlk

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Dr. Jonathan L. Kramer, Esq., JD, LL.M, DLP

I’m very pleased (and relieved) to report that this morning I successfully defended my doctoral thesis, “Cell Towers, Community Perspectives, and Hedonic Price Modeling: Utility, Limitations, and Localism.” It was wonderful the be greeted with, “Congratulations, Doctor Kramer” when the three thesis committee members came back from their private discussions after my defense.

This marks the completion of my doctoral studies at Northeastern University in the Doctor of Law and Policy program.  This does not mark the end of my research.

More information regarding my doctoral studies at Northeastern University may be found at http://JonathanKramer.com, my personal blog.

Jonathan

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Goodbye, Jenn Ward

jennward

Jenn Ward of Lorman Education Services was taken from us last Saturday night. Yet another victim of senseless gun violence, she was a kind heart wrapped in a caring body who protected the lives of her children by giving up her own. She was truly a human being.

Jenn, beyond being the lecture coordinator for . . . → Read More: Goodbye, Jenn Ward

Anyone receive a cease and desist letter?

It appears that a certain wireless construction company has directed its attorneys to send cease-and-desist letters to people who have a different view from their own. Apparently several letters hit their targets yesterday or the day before.

If you happen to receive one, congratulations and thanks for your public participation in an important national . . . → Read More: Anyone receive a cease and desist letter?

Mobilitie’s Latest Awful Design in Los Angeles

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Just when I thought Mobilitie had secured the position of worst in design, they proved me wrong. Mobilitie has outdone themselves with a new low in aesthetic design, here in Los Angeles on Vermont Avenue at Wilshire Boulevard. I’ve posted about 50 photos of this site in the Mobilitie Gallery at http://CellTowerPhotos.com.

 

. . . → Read More: Mobilitie’s Latest Awful Design in Los Angeles

Sucker Deals: Part 1 – The Cell Site Lease Illusory Rent Guarantee

This will be the first in an occasional series of of posting describing Sucker Deals offered by wireless companies to their site landlords in connection with cell site lases. Through these postings, I hope that you will gain insights into the sucker punches thrown at landlords by carriers and tower companies. Hopefully, you will learn . . . → Read More: Sucker Deals: Part 1 – The Cell Site Lease Illusory Rent Guarantee

Smart People at Smartlink

Yesterday, June 24, Tripp May, Michael Johnston, and I lectured to about 60 team members of Smartlink, a major site acquisition firm. Smartly, Smartlink conducts ongoing training of its professional staff via its ‘Smartlink University’ program. Even smarter, we were asked by Smartlink to provide guidance to their staff in multiple locations around the country . . . → Read More: Smart People at Smartlink

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