Just released this morning is the U.S. Supreme Court decision that, on a 6-3 vote, upholds the FCC Shot Clock.
The decision is linked below.
“SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined.”
Many will offer their view of the decision, which is essentially a reaffirmation of the Chevron Deference rule. For now, I’ll leave it to you, the readers, to reach your own conclusions.
What we know, now, is that the FCC Shot Clock is here to stay.
What we expect now is that the FCC will move to a rulemaking or declaratory ruling regarding Section 6409(a) [47 U.S.C 1455(a)]
Just issued about 15 minutes ago (9:14 a.m. PDT)
To the Parties of Record in Rulemaking (R.) 06-10-006:
On May 16, 2013, the City and County of San Francisco on behalf of the League of California Cities, the California Association of Counties, and SCAN NOTOA (Joint Parties) requested a 90-day extension to file comments on the May 2, 2013 Joint Assigned Commissioner and Administrative Law Judge Ruling. The Ruling requested parties to comment on five questions regarding the implementation of the California Environmental Quality Act for telecommunications providers. The Joint Parties explain that such additional time is necessary to perform the depth of careful analysis needed to adequately and meaningfully respond to the five questions.
It is reasonable to provide an extension of time to file comments, given the amount of time that has elapsed between the order for rehearing and this Ruling. However, we find that a 90-day extension is not warranted given that there are only five questions and one of the questions asks to provide the party’s position. With this in mind, I grant a 45-day extension for comments.
The deadline for opening comments to the May 2, 2013 Ruling is July 15, 2013. Reply comments are due August 1, 2013.
Kelly A. Hymes
Administrative Law Judge
California Public Utilities Commission
The additional time should be put to good use to gather facts and respond to the Commission’s questions regarding CEQA analysis of telecom facilities that are regulated by the CPUC.
John Pestle and I will once again be presenting our very popular program, Current Issues in Cell Tower Leases and Lease Buyouts. If you read through this entire post, you’ll find out how to get 20% off the registration fee!
This live-via-the-web program, presented through Lorman Education Services, will be presented twice in June: First on June 4, 2013, and second on June 20, 2013. Both presentations will span from 1:00 pm – 2:30 pm Eastern Time (10:00 a.m. – 11:30 a.m. Pacific Time). If you live in Arizona or some part of Indiana, you’ll have to figure out the conference time for yourself.
Attorneys will get 1.5 hours of CLE credit (subject to your state Bar rules). AICP, CC, ENG, and PMI credits may be available, as well.
Now we move on to the presentation description!
The wireless industry has built more than 250,000 cell sites in the United States in the past 20 years. But many more cell sites are needed as i-things, Droids and the like strain existing wireless network capacity. New cell sites and significant modifications to existing cell sites will also be needed to meet the government’s goal of using wireless to increase broadband speeds and coverage. At the same time, ‘tower management’ companies are offering to buy existing cell leases and lease sites for large sums of money.
This live audio conference, supplemented with lots of of written materials, will help level the playing field by providing private and municipal property owners with the expertise of two faculty members highly experienced in cell tower leases and buyouts. This will help property owners who usually are negotiating such leases or buyouts for the first and only time, while the companies have teams of lawyers who work exclusively on such matters.
We will focus on key business issues in wireless site leases, including lease rates, who gets the revenues from additional antennas or carriers being co-located at a site, major rent increases for renewals and avoiding lease terms which can restrict or prevent an owner’s use or development of its own property – - or trigger a mortgage default. An emphasis will be on the industry specific elements and terms of modern cell site leases, as well as why property owners can achieve very large rent increases on the renewal or extension of existing leases. Comparable issues on lease buyouts will be addressed, as well as why buyouts often are not good deals financially. You will be better able to identify and resolve issues that are unique to wireless leases and buyouts, including what municipalities can include in a lease that cannot be included in a government-issued permit, site location and value, lease term and terminations, access requirements, interference regulation and mitigation, design and camouflage, and radio frequency emissions issues.
- You will be able to explain the revenues the property owner receives, and discuss the common elements of private wireless site leases on developed and undeveloped land.
- You will be able to identify practice pointers, including key concepts, for owners of private property and their attorneys, as well as municipalities and municipal attorneys.
- You will be able to discuss the basics of wireless technology and the real property, technical and technology issues that drive a wireless carrier’s siting and leasing process.
- You will be able to review insurance and indemnity provisions to protect the property owner.
- Lease Rates, and How Property Owners Can Increase Revenues If Another Provider Adds Its Antenna to the Tower
- How Rents Can by Greatly Increased at Lease Renewal, and How to Avoid Losing Such Increases
- Avoiding Lease Terms Which Limit or Prevent the Owner’s Use and Development of Its Property or May Trigger a Mortgage Default
- Why Leases That Put Antennas on Buildings Are More Complicated Than Leases for Stand-Alone Towers, What Different Lease Terms Are Needed
- Buyout Offers for Cell Tower Leases and Lease Sites, How to Evaluate Them, Key Legal Considerations
- Issues Unique to States, Municipalities, Units of Government as Cell Tower Lessors
- Camouflage Options for Property Owners, to Protect the Value of Their Property
- Provisions Allowing the Property Owner to Relocate the Tower, If Necessary
- Backup Power and Generators, Key Issues and Concerns
- Insurance and Indemnity Provisions to Protect the Property Owner
- Restrictions on Changes in Who Owns the Tower to Protect the Property Owner
- Protecting the Owner If the Provider or Buyout Company Goes Bankrupt
John W. Pestle, Esq., Varnum
- Chair of the Telecommunications Group at the Varnum LLP law firm
- For more than 15 years has represented property owners (companies, municipalities, schools, churches, farms, etc.) on cell tower leases, amendments and buyouts
- Provides model cell tower leases, currently to more than 500 organizations nationwide
- For more than 25 years has represented clients on cable, telecommunications and other utility matters
- Represented municipalities on 1996 statute adding cell tower zoning provisions to Federal law, received Member of the Year award from national municipal group for same
- Represented National League of Cities and other municipal groups opposing Federal Communications Commission limits on local zoning, permitting for cellular and broadcast towers
- Received Special Award of Merit from the Michigan Municipal League for his work representing municipalities on cable and telecommunications matters
- Past chair of both the Municipal Lawyers Section of the State Bar of Michigan and the Legal Section of the American Public Power Association
- Held FCC First Class Radio Telephone license to work on radio, TV and ship radar transmitters
- Admitted to practice in Michigan and Arizona
- Graduate, Harvard College, Yale Graduate School and the University of Michigan Law School
- Can be contacted at 616-336-6000 , ext. 6725, or email@example.com
Jonathan L. Kramer, Esq.
- Heads the Telecom Law Firm, P.C. based in Los Angeles
- Radio frequency engineer, and an attorney admitted to practice in California and New Mexico
- Concentrates on law and technology issues of broadband and wireless telecommunications
- Wireless siting planner and radio frequency engineer, and wireless lecturer for hundreds of local governments throughout the United States for 18 years
- Testifying expert or trial consultant in wireless cases
- Published feature articles on wireless tower siting in government and wireless industry journals
- Co-wrote and edited the FCC’s publication, A Local Government Official’s Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures and Practical Guidance
- National member of NATOA for more than 20 years and its only twice-honored Member of the Year
- Fellow member of the Society of Cable Telecommunication Engineers, U.K. Society, and an elected senior member of the Society of Cable Telecommunications Engineers, U.S. Society
- Licensed by the FCC, holding its highest grade licenses for commercial radiotelephone, radar and marine digital communications, as well as its highest grade amateur radio license, and licensed as a low-voltage communications contractor in California
- Can be contacted at 310-312-9900 , ext. 121, or Kramer@TelecomLawFirm.com
These Materials are Designed For…
This live audio conference is designed for attorneys, planners, directors of development, project managers, government administrators, council and board members, land use officials, public works and utilities directors, municipal government officials, engineers, architects, surveyors and real estate professionals.
Download the attached brochure for a 20% Discount Code: FULL BROCHURE IN PDF FORMAT
To register online for the June 4th lecture, click here.
To register online for the June 20th lecture, click here.
What agency should evaluate compliance with the California Environmental Quality Act (CEQA) as it applies to telecom firms: Local governments or the CPUC? That burning question is at the heart of what agency is best able to protect the public by evaluating CEQA considerations related to telecom construction.
Historically, the California Public Utilities Commission has generally issued blanket CEQA exemptions to telecom firms, without public notice, for project that scope from one street corner to hundreds of miles of construction in the public right of way.
In December 2010, the CPUC issued General Order 170, that purported to grant itself specific rights related to CEQA reviews of telecom projects. A year later, in December 2011, responding to various petitions for rehearing, the Commission rescinded GO170.
Late today, the Commission issued a ruling (attached at the bottom of this post) to rehear the matter, and to take additional evidence from the public. The CPUC’s ruling setting a new hearing cycle, albeit it a very short cycle, is attached to this post. The current schedule is at opening responses are due on May 31, 2013, with reply comments due on June 14, 2013. The Commission plans to issue a decision in this case sometime during the Summer of 2013.
If you represent a local government, or you are a citizen with an interest in preserving CEQA review of telecom projects with the local government agency closest to the issues underpinning environmental protection, then you should focus your attention on this proceeding. The Commission has asked the public to evaluate and respond to five specific questions set out in the document.
I’ll have more on this in the coming days.
CLICK HERE: Order Instituting Rulemaking on the Commission’s own motion into the application of the California Environmental Quality Act to applications of jurisdictional telecommunications utilities for authority to offer service and construct facilities.
AB 162 will try to re-emerge in January 2014. Let’s take the time now to continue to educate our electeds.
Now that Assembly Bill 162 has been removed from California’s legislative agenda for 2013, it’s vital that we remember that the Bill is not dead; it is merely awaiting a rebirth in some form in 2014.
Because of the reality of re-emergence, we need to continue to educate Assembly Member Holden and his staff about the inherent unintended consequences of this seemingly simple, yet highly technical legislation.
Coupled with education, we must work with elected officials in the Assembly and Senate to show them that there is no significant special problem for AB 162 to try and fix.
Finally, we need to continue monitoring what happens at the federal level with Section 6409(a). That legislation, which has serious constitutional deficiencies, will be vicariously defended by the wireless industry. We also need to track that happens with the pending U.S. Supreme Court decision regarding the FCC’s Shot Clock in the Arlington case.
Thanks are due to hundreds of constituents, local governments, and staffers who all came together to work with Mr. Holden to explain why AB 162 as proposed and then amended is not in the best interests of the people of California.
We also owe genuine thanks to Mr. Holden for hearing those many voices and pulling back his Bill…for now…rather than forcing a slug-out in Sacramento.
It’s true…bad facts do make bad law.
Hot news just in: AB 162 has been pulled from this year’s legislative calender.
This means that the Bill will not come up for consideration until at least next January.
Many people; many local associations; and many local governments have been instrumental in achieving this result, and they all deserve thanks.
This, however, is not . . . → Read More: Assembly Bill 162 Pulled – Will Not Come Back Until At Least 2014
Assembly Bill 162, as amended on 4/23 (see my post here about those awful amendments) has been re-referred to the Assembly’s Local Government Committee. It will be heard on Wednesday, May 1, 2013.
It is vital that your views on AB 162 be communicated to your electeds before the hearing.
For local governments, formal opposition . . . → Read More: Amended Assembly Bill 162 To Be Heard May 1
Assembly Bill 162, The Wireless Collocation Bill, Amended by its Author -
BILL IS NOW FAR WORSE FOR THE PUBLIC AND LOCAL GOVERNMENTS
[Updated 4/24/13 7:28 p.m. - Added link to PDF version of this analysis. See link at bottom of this page]
As a reminder, on March 21, 2013, Assembly Bill . . . → Read More: Assembly Bill 162 Wireless Bill Amended – Analysis
MetroPCS’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 . . . → Read More: T-Mobile MetroPCS Deal Done – Closing on May 1
(Update 11:52 a.m. Okay, I underestimated the time it takes to filter through and write up how bad the amendment to AB 162 really is in impact. I’m currently working on a photo sim for my post. I’ll try and have this done by 1 p.m. today.)
(UPDATE: 11:01 a.m.: I’m still working on my . . . → Read More: A.B. 162 Amended: Now Much Worse