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Home My WebLink About2011 - NewsletterVol. 15, No. 3 There's technology and there's zoning. They are not the same thing. PlanWireless A Newsletter About Planning for Personal Wireless Service Facilities April/May 2011 Got DAS? Don't Push it on the Carriers AT&T Will Buy T -Mobile. What it Means or They May (Successfully) Sue You for Cities, Counties and Landlords Kreines & Kreines, Inc. has spent a lot of time AT&T has announced it will pay $39 billion for T explaining (but not promoting) the concept of DAS, a Mobile. Although the federal government will take a less intrusive technology, to our local government year to approve the acquisition, PlanWireless thinks it's clients. Two court cases in New York State (U.S. Court a done deal. In a nutshell, the wireless industry gets of Appeals for the Second Circuit and U.S. District Court) have told local governments to stop promoting DAS to the point of preferring DAS to conventional cell sites. The message to these cities and towns is, "Stay out of technology; it's the carrier's domain." Verizon Wireless, New Cingular Wireless, Sprint Spectrum and T - Mobile v. Town of Clarkstown, New York In 2007, the Town of Clarkstown passed a local law intended to give the Town the ability to control visual and aesthetic aspects of wireless telecommunications facilities within the T -Mobile Sale to AT&T ❑� -Mobile equipment TT -Mobile cell site before the sale T- Mobile equipment �L —AT&T equipment moves in T -Mobile cell site after the sale T ❑AT&T equipment AT&T cell site before the sale AT&T equipment T n T -Mobile equipment moves in AT&T cell site after the sale These changes require approval and they should also bring more revenue to the local government and landlord Town and sought to implement a "preference" in residential areas for smaller and less intrusive antennas. Clarkstown s law sought to "establish clear standards for the review and siting of wireless telecommunications facilities," and to protect the residential areas of the town from "unsightly" and "intrusive" facilities. The Town established a multi - Continued on page 2, column 1 from the FCC what it wants. Sprint - Nextel will oppose it, but they are a drowning man gasping for breath. Verizon Wireless will make noises, but what does it care? As far as the AT&T purchase of T -Mobile goes, the greatest impact will be felt where these two carriers' cell sites are permitted or leased. Read Your Existing Permits Most local governments grant conditional use permits, special use permits or special exceptions for a cell site. There should' be a document for an existing cell site which states exactly what was permitted at the time. If all else fails, examine the drawiinngs�that were filed with the local government bye carrier. rrier. In most cases, AT&T and T -Mobile filed drawings that are labeled for additions called "future" or "growth." From the carriers' perspective, any approved drawings with cabinets so labeled means, "We can put anything we want in that cabinet." From Continued on page 4, column 1 ne Court dismissed the City's argument that ecause MetroPCS chose to construct a DAS network, it would be required to fill coverage gaps using that DAS rather than installing an antenna. The Court found that this argument goes against the purpose of the Telecommunications Act because it discourages carriers for trying new technologies and optimizing the service they provide. The Court also found that the City unreasonably discriminated against MetroPCS. The City did not contest that it discriminated but argues that it was reasonable because MetroPCS is the only carrier with access to a DAS network. Editor's Note: If a local government is going to approve a DAS, the proposed DAS should be made available for all carriers to use. The Court also found that the City unreasonably delayed the application in part because of the City's unreasonable insistence that MetroPCS explore the feasibility of the DAS network. The Court required the City to immediately approve MetroPCS'S application and any associated permits to enable it to install the proposed antennas. • AT&T Buys T -Mobile (continued from page 1, column 2). the local government's perspective, any change within a cabinet should require an amendment to the permit. Ask a local government's representative, who is no doubt working on more important things, like finding more sources of revenue, and you will get a polite, "Who cares?" Conclusion: Here's why a local government should care about adding more equipment to a cell site: more equipment means more bandwidth and more bandwidth means more RF emissions. How many cell sites claimed that their RF emissions were below the FCC limits when they were approved but have since increased their bandwidth? Most of them. More bandwidth means more RF emissions. Read Your Lease, or Better Yet, Write a Good Lease to Begin With There are at least six places in a standard lease where it could say, "This lease is for the equipment identified herein or shown on Exhibit B." Most leases do not so specify, so both AT&T as well as T -Mobile take the position that they can add as much equipment as they like under the same lease rate. If a landlord dares to demand more rent for the addition of more equipment, here's what the landlord may be told by the carrier, "As a carrier in a competitive business, we don't share our revenues with our landlords. Just because our revenue grows does not means the lease rate changes." However, some savvy landlords have clauses in their leases under "Assignment or Sale of the Lease' that the Tenant needs the landlord's permission to bring in another carrier. "Oh, no, says AT&T, we merged with T -Mobile and they are now our subsidiary." "Oh, no, says T -Mobile, we're now a subsidiary of AT&T's." .1 Conclusion: There are ways to deal with tenants who deny they are expanding the original lease (which r they wrote). Do not settle for anything less than $1,000 more in lease rate per month for the addition of another carrier's equipment and a revision of the lease that clarifies agreement on expansion of the lease area % and/or equipment therein.* Let's Get Real: A 2.5 -inch Box Will Not Replace Towers Kreines & Kreines, Inc. has already had a call from an attorney in Tallahassee. She has a client who, because of the alternative of using this new invention, wants to fight a proposed tower because it is no longer necessary. Alcatel -Lucent has announced a base station that measures 2.5 inches and weighs 11 ounces. The headlines all say, "It's the end of cell towers." Base stations are currently in cabinets at the bottom of towers. They are not the towers themselves. The towers hold the antennas, and the antennas send out the signals, not the base stations. Signals will still need height to be sent and to be received. Where would Alcatel -Lucent put the little cubes? On the ground? In the trees? Wont we still need cables from the little cubes to the antennas? And base stations need connection to electric service and the Public -Switched Telephone Network. Are we doing this by solar energy and satellite telephone? The tower industry serves many more users than carriers who have base stations. Towers are not going away and we are going to see a lot more of them. • Published by Kreines & Kreines, Inc., Consultants to Cities & Counties on Wireless Planning 58 Paseo Mirasol, Tiburon, CA 94920, (415) 435-9214 phone and (415) 435-1522 fax e-mail: mail@planwireless.com -web site: http://www.planwireless.com There's technology and there's zoning. They are not the same thing. Vol. 15, No. 3 PlanWireless April/May 2011 A Newsletter About Planning for Personal Wireless Service Facilities Got DAS? Don't Push it on the Carriers or They May (Successfully) Sue You Kreines & Kreines, Inc. has spent a lot of time explaining (but not promoting) the concept of DAS, a less intrusive technology, to our local government clients. Two court cases in New York State (U.S. Court of Appeals for the Second Circuit and U.S. District Court) have told local governments to stop promoting DAS to the point of preferring DAS to conventional cell sites. The message to these cities and towns is, "Stay out of technology; it's the carrier's domain." Verizon Wireless, New Cingular Wireless, Sprint Spectrum and T - Mobile v. Town of Clarkstown, New York In 2007, the Town of Clarkstown passed a local law intended to give the Town the ability to control visual and aesthetic aspects of wireless telecommunications facilities within the rT&T Will Buy T -Mobile. What it Ions for Cities, Counties and Landlor AT&1has alMOUI102d it will pay $3 i ton Mobile. Although the federal government will take a year to approve the acquisition, PlanWireless thinks it's a done deal. In a nutshell, the wireless industry gets from the FCC what Before and After the T -Mobile Sale to AT&T �� -Mobile equipment TT -Mobile cell site before the sale T -Mobile equipment T []4 AT&T equipment moves in T -Mobile cell site after the sale AT&T equipment F]AI '�AT&T cell site before the sale - --------•• .................. AT&T equipment T OA��T-Mobile equipment moves in AT&T cell site after the sale These changes require approval and they should also bring more revenue to the local government and landlord Town and sought to implement a "preference" in residential areas for smaller and less intrusive antennas. it wants. Sprint - Nextel will oppose it, but they are a drowning man gasping for breath. Verizon Wireless will make noises, but what does it care? As far as the AT&T purchase of T -Mobile goes, the greatest impact will be felt where these two carriers' cell sites are permitted or leased. Read Your Existing Permits Most local governments grant conditional use permits, special use permits or special exceptions for a cell site. Triere should be adocument for an existing cell site which states exactly what was permitted at the time. If all else fails, examine the drawings that were filed with the local government by the carrier. Clarkstown s law sought to "establish clear In most cases, AT&T and T -Mobile filed drawings standards for the review and siting of wireless that are labeled for additions called "future" or telecommunications facilities," and to protect the "growth." From the carriers' perspective, any residential areas of the town from "unsightly" and approved drawings with cabinets so labeled means, "intrusive" facilities. The Town established a multi- "We can put anything we want in that cabinet." From Continued on page 2, column 1 Continued on page 4, column 1 Don't Push Technology (continued from page 1, column 1) stage application process that pre-screened applicants based on several factors, including the use of "preferred alternate technology, such as distributed antenna systems (DAS)." Based on their score in a pre - application assessment, applicants are placed into one of four categories and the amount of scrutiny that an application receives is based on the category that an application is placed in. Applications using preferred alternative technologies such as DAS receive a faster and less rigorous evaluation by the planning board. Applications that do not use alternate technologies receive the most scrutiny and risk rejection. Four national telecommunications carriers sued the Town on the grounds that the Town was preempted by federal communications law. The Telecommunications Act of 1996 preserved the authority of state and local governments over zoning and land use issues, but imposed limitations on that authority. Two of those limitations are that local governments may not unreasonably discriminate among carriers of functionally equivalent services and may not prohibit or have the effect of prohibiting the provisions of personal wireless services. The District Court agreed with the carriers and held that the law granting a preference for certain "alternate technologies" was preempted because it interfered with the federal regulatory scheme for wireless technology. The Court gave the town six months to rewrite the law. The town appealed to the U.S. Court of Appeals for the Second Circuit. And, pending the appeal, the Town removed the preference for alternative technologies from its law. The Court of Appeals agreed with the decision of the District Court. The Court found that the provisions setting forth a preference for 'alternative technologies" are preempted because they interfere with the federal government's regulation of technical and operational aspects of wireless telecommunications technology, a field that is occupied by federal law. Because the Town's law explicitly establishes a "preference" for certain wireless technologies including DAS, the Town also relegated other technology, including technology that would meet the FCC's standards, to an inferior and decidedly disadvantaged status. To take advantage of the Town's law, carriers would have to use technology that required many more smaller antennas and different supporting equipment and services. The Town's argues that its law merely sets forth a "preference" for less intrusive alternative technologies and does not amount to the regulation of antenna technology. The Court does not agree. Because the Town's preference for alternative technologies is so substantial, the law effectively mandates their use and interferes with the federal regulatory scheme. The authority given to local governments in the Telecommunications Act over zoning and land use matters does not extend to technical and operational matters over which the FCC and the federal government have exclusive authority. The Town's law crosses the line between zoning and land use regulation and the regulation of technical and operational standards. Editor's Note: there are perfectly acceptable zoning and land use techniques to obtain the same objectives as DAS delivers. For example, base height limits on the surrounding environment and, when carriers demand more height (because of technology) let them build two or more shorter sites. There is case law allowing this. MetroPCS New York, LLC v. the City of Mount Vernon, New York In 2008, MetroPCS applied to the City of Mount Vernon for a Special Use Permit to allow MetroPCS to install a stealth six -panel antenna on the rooftop of a building in the City. The building has already been approved by the Town's Planning Board to house the same type of wireless facilities for three other wireless carriers: Nextel, T -Mobile and AT&T. MetroPCS chose the site in part because it qualified as the highest priority site in the Town Zoning Code and MetroPCS modeled its facility on those already approved for the other three carriers. MetroPCS claimed that this site would fill a critical gap in service that existed in the City. A consultant for the Town told MetroPCS that the RF coverage plots it submitted to the City did not explain why a nearby and existing MetroPCS distributed antenna system (DAS) in the City did not provide reliable coverage. It was not clear whether DAS left a gap that the proposed site would fill, or whether the two systems would overlap significantly. MetroPCS indicated that it would not submit any further information to the City. The City's consultant prepared a report to the Planning Board recommending that the application be denied for the primary reason that "the applicant has not explained why additional nodes cannot be added to the DAS network as an alternative, less intrusive means for deployment of service within the Mount Vernon coverage area, rather than the proposed rooftop facility." (2) Pm Do You Want to Continue Receiving PlanWireless? (3) P6t If you would like to receive a subscription to PlanWireless, please send the following information to Kreines & Kreines, Inc. by mail (58 Paseo Mirasol, Tiburon, CA 94920) or e-mail (mail@planwireless.com). A subscription is $60 for six issues. If you have questions, please call us at 415-435-9214 or e-mail us at mailQplanwireless.com. Name/Title: Jurisdiction/ Company: Staple Your E -Mail Address: Business Card Here Mailing Address: Back Issues ($20 each): Please let us know the back issues you wish to order (March 1996 to Feb./ March 2011). This newsletter is designed to provide information about planning for personal wireless service facilities. It is sold and distributed free with the understanding that PlanWireless is not providing legal, planning or any other professional advice or services with this newsletter. Please contact Kreines & Kreines, Inc. if you would like to obtain professional planning services. If legal or other expert assistance is required, the services of a competent professional should be obtained. No other reason was provided for denying the application. Editor's Note: A local government seeking to deny a carrier's application should use zoning and land use reasons to do it. "Coverage" consultants should be working for carriers, not for local governments. In 2009, MetroPCS attempted to satisfy the request for information from the City's consultant by asking for a detailed list of the information that remained outstanding. The consultant requested information relating to the possibility of using the DAS network to eliminate the coverage gap. MetroPCS responded that the consultant was improperly trying to dictate the type of technology that MetroPCS used to provide service. MetroPCS repeated its past warning that the City's delay was in violation of the Telecommunications Act. However, MetroPCS did submit additional information showing the coverage gap. The City's consultant replied that the application was still incomplete because of inconsistencies in the data showing the need for the proposed facility. The consultant repeated that the City's Planning Board's intent is that the "preferred method of deployment for wireless telecommunications facilities within the City is via the existing DAS network." network as an alternative, less intrusive means for deployment of service within the City." The Planning Board denied the application for the reasons that there were "conflicting and missing application materials" and "applicant refused to provide the requested information and states there will be no additional material forthcoming." MetroPCS sued the City in the U.S. District Court for the Southern District of New York. MetroPCS claimed that the City violated the provisions of the Telecommunications Act by failing to base the denial of the application on substantial evidence and unreasonably discriminating against MetroPCS. The Court found that the City did not base its denial on substantial evidence. MetroPCS was under no obligation to prove why DAS was less feasible. The City's consultants claim that the "intent of the Mount Vernon Planning Board that the preferred method of deployment for wireless telecommunications facilities within the City is via the existing DAS network." The Court found that this "intent" is belied by the Zoning Code's clearly stated preference for co -location, such as proposed by MetroPCS. Most provisions of the City's Zoning Code reinforce the City's preference for co -locating wireless facilities and co -location sites are given the highest priority ine consuitant sunmittea a nnai report to the t.ity under the Code. stating that MetroPCS "continues to refuse our Editor's Note: If the consultant only had known: requests for what we believe to be material information there was a priority list tested by a New York State that is necessary to prove the need for this site." The court 15 years ago. A local government shouldn't be primary reason for recommending that the Planning zoning for priorities and it may have a tough time Board deny the application was the "lack of enforcing such a list. Cell sites need to go in residential information on the feasibility of using the DAS areas, so deal with it. The Court dismissed the City's argument that because MetroPCS chose to construct a DAS network, it would be required to fill coverage gaps using that DAS rather than installing an antenna. The Court found that this argument goes against the purpose of the Telecommunications Act because it discourages carriers for trying new technologies and optimizing the service they provide. The Court also found that the City unreasonably discriminated against MetroPCS. The City did not contest that it discriminated but argues that it was reasonable because MetroPCS is the only carrier with access to a DAS network. Editor's Note: If a local government is going to approve a DAS, the proposed DAS should be made available for all carriers to use. The Court also found that the City unreasonably delayed the application in part because of the City's unreasonable insistence that MetroPCS explore the feasibility of the DAS network. The Court required the City to immediately approve MetroPCS's application and any associated permits to enable it to install the proposed antennas. • the local government's perspective, any change within a cabinet should require an amendment to the permit. Ask a local government's representative, who is no doubt working on more important things, like finding more sources of revenue, and you will get a polite, "Who cares?" Conclusion: Here's why a local government should care about adding more equipment to a cell site: more equipment means more bandwidth and more bandwidth means more RF emissions. How many cell sites claimed that their RF emissions were below the FCC limits when they were approved but have since increased their bandwidth? Most of them. More bandwidth means more RF emissions. Read Your Lease, or Better Yet, Write a Good Lease to Begin With There are at least six places in a standard lease where it could say, "This lease is for the equipment identified herein or shown on Exhibit B." Most leases do not so specify, so both AT&T as well as T -Mobile take the position that they can add as much equipment as they like under the same lease rate. If a landlord dares to demand more rent for the addition of more equipment, here's what the landlord may be told by the carrier, "As a carrier in a competitive business, we dori t share our revenues with our landlords. Just because our revenue grows does not means the lease rate changes." However, some savvy landlords have clauses in their leases under "Assignment or Sale of the Lease" that the Tenant needs the landlord's permission to bring in another carrier. "Oh, no, says AT&T, we merged with T -Mobile and they are now our subsidiary." "Oh, no, says T -Mobile, we're now a subsidiary of AT&T's." Conclusion: There are ways to deal with tenants who deny they are expanding the original lease (which they wrote). Do not settle for anything less than $1,000 more in lease rate per month for the addition of another carrier's equipment and a revision of the lease that clarifies agreement on expansion of the lease area and/or equipment therein.* Let's Get Real: A 2.5 -inch Box Will Not Replace Towers Kreines & Kreines, Inc. has already had a call from an attorney in Tallahassee. She has a client who, because of the alternative of using this new invention, wants to fight a proposed tower because it is no longer necessary. Alcatel -Lucent has announced a base station that measures 2.5 inches and weighs 11 ounces. The headlines all say, "It's the end of cell towers." Base stations are currently in cabinets at the bottom of towers. They are not the towers themselves. The towers hold the antennas, and the antennas send out the signals, not the base stations. Signals will still need height to be sent and to be received. Where would Alcatel -Lucent put the little cubes? On the ground? In the trees? Won't we still need cables from the little cubes to the antennas? And base stations need connection to electric service and the Public -Switched Telephone Network. Are we doing this by solar energy and satellite telephone? The tower industry serves many more users than carriers who have base stations. Towers are not d�ooing away and we are going to see a lot more of them7/ Published by Kreines & Kreines, Inc., Consultants to Cities & Counties on Wireless Planning 58 Paseo Wasol, Tiburon, CA 94920, (415) 435-9214 phone and (415) 435-1522 fax e-mail: mail@planwireless.com -web site: http://www.planwireless.com