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Old News is Better than No News

This is where we keep the old headlines and other items that formerly graced the front page of TelecomLawFirm.com during 2009.

See, we're not hiding our older stuff, but we're not filling up the front page with it, either.

Kramer Telecom Law Firm, P.C. (KTLF) is a very unusual law firm that combines decades of radio frequency, cable TV, broadband, fiber technology, and right-or-way management experience with practical law knowledge in those technology areas to provide our clients with real solutions to their matters.


2009 KTLF Stories Archive
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OLDER KTLF NEWS HEADLINES
2010 Archive

Major Issues in WiMAX Tower Leases and Zoning
(Thursday, July 8, 2010 - 1 P.M. EDT)

July 8, 2010 at 1:00 p.m. EDT: Jonathan and John W. Pestle will, once more, be co-presenters at Lorman's "Major Issues in WiMAX Tower Leases and Zoning" teleconference. This teleconference is especially timely as Clearwire and other WiMAX provides push to rapidly expand their coverage footprints. Jonathan will focus on the technology issues (back-haul mesh networks, transmission, RF safety, equipment, etc) as they intertwine with the legal issues connected with WiMAX site leasing and zoning. These lectures are geared towards private practice and municipal government attorneys.

For more information and registration details, please visit Lorman's web site by following this link.

Note that continuing education participation units/credits are available for these seminars: AICP (Pending); CC; CLE/MCLE (please check Lorman's "Detailed Credit Information" page for states that have already been approved); ENG; and PMI.


Current Issues in Cell Tower Leasing

March 25, 2010: Jonathan and John W. Pestle will be co-presenters on the very popular topic of 'Current Issues in Cell Tower Leasing.' These teleconferences are coordinated by Lorman Education Services.

Jonathan will focus on the technology issues (transmission, RF safety, equipment) as they intertwine with the legal issues connected with site leasing. Call it,' how carriers use techno-babble to hide the ball in their leases.'

These lectures are geared towards private practice and municipal government attorneys. For more information and registration details, please click on the links below:

To register for the March 25th conference call, please click here.

Note that continuing education participation units/credits are available for these seminars: AICP (Pending); CC; CLE/MCLE (please check Lorman's "Detailed Credit Information" page for states that have already been approved); ENG; and PMI.


LEAGUE OF CALIFORNIA CITIES
2010 City Attorneys' Spring Conference
(May 6, 2010 - Santa Barbara, California)

Wireless Issues Update

Thursday, May 6, 2010: Jonathan will be one of two General Session speakers the League's Spring Conference for City Attorneys.

His presentation is titled, "Wireless Issues Update" and given all that's happening in wireless siting in California (the FCC shot clock; Clearwire's massive deployment; AT&T and T-Mobile deploying UMTS; etc.) there's lots to talk about.

Please visit this page for registration information.


FCC to DC Circuit Court of Appeals on Net Neutrality:
'Okay, we'll try it the Third Way'

May 7, 2010: In early April, the DC Circuit Court of Appeals invalided the FCC's network neutrality rules on procedural grounds.

Yesterday, the FCC chair announced his new plan to create a regulatory scheme that will allow the Commission to oversee network neutrality.

Jonathan is quoted in a E-Commerce Times article on this subject. To read the E-Commerce Times article quoting Jonathan, please click here (PDF).

California Wireless Association's New Video:
"You Can't Have One Without The Other"
April 8, 2010: The California Wireless Association (CALWA) has released a new video entitled, "You Can't Have One Without The Other." The video is a professionally produced 30 second spot, and very factual. To watch the video posted on YouTube, click on the image.

There's no doubt that the Government's YouTube response video--yet to be produced--will be titled with a famous lyric ending with "You get what you need."
calwa

DC Circuit Court of Appeals to FCC on Net Neutrality:
'Huh?'

April 6, 2010: The DC Circuit Court of Appeals has invalided the FCC's network neutrality rules, but it did so on procedural grounds. The Court told the Commission that it had not established that it had Congressional authority to create the rules that were invalided today.

Will the FCC regroup and try again? The following quotation, from the FCC's press release today, suggests the answer is yes.

“Today’s court decision invalidated the prior Commission’s approach to preserving an open Internet. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.” (Emphasis added).

Jonathan is quoted in a E-Commerce Times article on the Court's ruling.

To read the court's decision, please click here (PDF).
To read the FCC's press release, please click here (PDF).
To read the E-Commerce Times article quoting Jonathan, please click here (PDF).


NewPath Networks (DAS Provider) Fails to Secure
Preliminary Injunction Against City of Davis, California

March 18, 2010: NewPath Networks, a distributed antenna system (DAS) provider, sued the City of Davis, California in January, 2010. The suit concerns the City's revocation of NewPath's permits to construct a DAS system in Davis. Shortly after a City Council meeting that affirmed the revocation of the permits, NewPath sued Davis.

Here how the Hon. Garland E. Burrell, Jr., United States District Judge introduced the case in his 37 page decision:

"This case concerns whether NewPath Networks, LLC (“NewPath”) must first comply with the city of Davis’ (the “City”) Wireless Telecommunications Facilities Ordinance (“WTF Ordinance”) before constructing a proposed distributed antenna system (“DAS”) within the City. NewPath now seeks a preliminary injunction that would require the City to reinstate thirty-six revoked encroachment and building permits which authorize NewPath to construct its DAS, declare the City’s “Stop Work Notice” “null and void” and enjoin the City, “its officers, agents, servants, employees and attorneys . . . from acting in any manner contrary [to the Court’s order].” [...] NewPath argues this preliminary injunction should issue since “[t]he City’s actions are contrary to[,] and preempted by state and federal law and immediate and irreparable injury will result to NewPath unless the [City’s] activities . . . are enjoined pending trial of this action.” [...] The City opposes NewPath’s motion. Oral argument on NewPath’s motion was held on March 8, 2010. For the reasons stated below, NewPath’s motion for a preliminary injunction is DENIED." (References omitted)

If you would like to read the full decision denying NewPath's petition for a preliminary injunction, please click here (.PDF format, 235 kb)

Attorneys for the City of Davis: Harriet Steiner and Kimberly Hood, McDonough Holland & Allen, PC
Attorneys for NewPath Networks: Robert Jystad and Jamie Hall, Channel Law Group, LLP

Jonathan Kramer serves as wireless technology advisor to the City of Davis.



Gateway Cities Council of Governments
March 17, 2010
Wireless 101 1/2

March 17, 2010: Jonathan will be the speaker at the Gateway Cities Council of Governments meeting to be held at the Holiday Inn in La Mirada, California.

Jonathan will present an update on current wireless regulatory issues, including:

  • Right-of-way access
  • The FCC shot clock
  • Current wireless and DAS litigation
  • New wireless system deployment

California Wireless Association
2010 Luncheon and Education Session

February 25, 2010
Grand Californian Hotel (Disneyland)
Anaheim, California

Jonathan Kramer and Javan Rad (City of Pasadena) will be the government attorney/representatives on a government/industry panel at CalWA's first educational session in 2010. The industry panelists/attorneys will be Robert Jystad (Channel Law Group) and Michael Shonafeld (Allen Matkins).

The full event includes a 1:00 PM Luncheon with a Guest Speaker, followed by our panel discussion at 2:30 p.m., and ending up with a social mixer at 4:00 p.m. Let's get mixed!

Tickets are available online at calwaluncheon.eventbrite.org.


Why is this man smiling?

This is Steve Allen, our senior field investigator.

Today, January 25, 2010, he took and passed his State of California Contractors State License Board examination to become a licensed C7 contractor.

C7 contractors are licensed by the State of California to construct low voltage communications systems, including cable television, closed circuit, telephone, and data.

Now you know why this is one happy man, and why we're so very proud of him.


IMPORTANT
Wireless Siting Due Dates
for State and Local Governments

December 5, 2009: I've received questions from governments regarding the timing of current and new applications under the FCC's Shot Clock Order (FCC 09-99).

Paragraph 51 of the decision sets out in dense and relevant part:

Accordingly, as a general rule, for currently pending applications we deem that a "failure to act" will occur 90 days (for collocations) or 150 days (for other applications) after the release of this Declaratory Ruling. We recognize, however, that some applications have been pending for a very long period, and that delaying resolution for an additional 90 or 150 days may impose an undue burden on the applicant. Therefore, a party whose application has been pending for the applicable timeframe that we establish herein or longer as of the release date of this Declaratory Ruling may, after providing notice to the relevant State or local government, file suit under Section 332(c)(7)(B)(v) if the State or local government fails to act within 60 days from the date of such notice. The notice provided to the State or local government shall include a copy of this Declaratory Ruling. This option does not apply to applications that have currently been pending for less than 90 or 150 days, and in these instances the State or local government will have 90 or 150 days from the release of this Declaratory Ruling before it will be considered to have failed to act. We find that this transitional regime best balances the interests of applicants in finality with the needs of State and local governments for adequate time to implement our interpretation of Section 332(c)(7).

Essentially governments have three time-to-act possibilities under the decision, which are:

(1) the government must act on NEW siting applications accepted on or after 11/18/09 within 90 days of acceptance for collocations , or 150 days of acceptance for new/other sites; or

(2) for sites ALREADY in the government's processing queue for LESS than 90 (collocations) or 150 days (new or other applications) on 11/18/09, the government starts the 90 or 150 day clocks to complete processing as of 11/18/09. This means that collocation applications must be acted upon on or before Wednesday 2/16/10, and new/other siting applications must be acted upon on or before Saturday 4/17/10 (presumably--but not assuredly--this date will automatically extend to the next regular business day, Monday 4/19/10); and

(3) for sites ALREADY in the governments's queue for MORE than 90 days (collocations) or 150 days (new/other sites) on 11/18/09, /if the carrier sends the appropriate notice and a copy of the decision to the government, you'll have 60 days from the date of the notice to complete the process. Whether the 'date of the notice' is the one listed on the carrier's letter, the date it was mailed or transmitted by fax or email, or dropped through the sunroof by a carrier pigeon, or the date the letter, email, fax, or bird-dropping was received by the government is unclear, but presumably actual receipt of the notice by the government would be the most appropriate date).

Legal stuff: This is not legal advice as to any specific matter. Check with your government attorney for her/his interpretation of this decision and its sub-elements because that's the only opinion that you should follow. Until and unless the ruling is stayed, modified, or scraped, you should presume that the FCC's deadlines will apply.


Wireless Application Form for Local Governments
Updated December 16, 2009 (Major Update)

December 16, 2009: Jonathan has just released yet another update to the extremely popular and widely used Supplemental Wireless Application form.

This is a MAJOR update addressing the FCC Shot Clock decision incorporating the Sprint v. Palos Verdes Estates decision in the 9th Circuit.

Used by governments around the country for over 5 years, this form helps governments collect relevant and necessary data to assist the government with complying with Telecom Act Sections 253, 332, and 704 data collection and analysis requirements. In California, the form also assists in determining rights under PUC Code Sections 7901 and 7901.1 related to a carriers interest in siting in the public right of way, as well as CEQA and the California Government Code.

This copyrighted form is free to use and modify by federal, state, and local government agencies. See the Wireless Siting Form page for more details, and download links for the updated form in three different formats (.doc; .rtf; and .pdf). A link to the download page is also on the left column of this page.


FCC ACTS ON CTIA SHOT CLOCK PETITION

On November 18, 2009: The Commission voted today to adopt an order setting out what it considers to be reasonable time frames for state and local governments to act on tower siting applications. The Commission announced that it has determined that collocations applications must be decided within 90 days of (???) and applications for new and other wireless sites must be decided within 150 days of (???).

What does ??? mean? Good question. Until the actual order is clarified by the Commission (or the courts), we won't know whether they've addressed a key question: Does the clock run from when the application is filed, or does it run from when the application is determined by the state or local government agency to be complete. And while we're on the subject, what is the impact on state law processes (such as CEQA and Coastal Commission in California)? Does the application action period during the time periods outside the control of local permitting agencies?

While not reaching a decision may open the doors to state and federal courts, the Commission acknowledges that their shot clock is rebuttable in court. Of course, to get the the rebutting stage, the local government will bear the costs of litigation, without knowing whether their legal costs will be their own, or if the court will order the application/plaintiff to reimburse the local government is the presumption is, in fact, rebutted.

The Commission also declared that the existence of one carrier's service in an area does not permit a state or local to deny a subsequent application (some might call this the 'one is enough' rule). This portion of the FCC's order will have no impact in the 9th Circuit, since the 'one is enough' rule was overruled in this Circuit years ago in the MetroPCS v. San Francisco case.

The Commission's Declaratory Ruling will become effective upon the release of the decision.

If you would like to listen to the FCC's hearing (32 minutes, 9 seconds in length), you can CLICK HERE.

Click Here to download the FCC's Declaratory Ruling (PDF format).
To read the CTIA's original petition, click here (PDF format)


Government Attorneys and Planners: Kramer's Major New Guide to RF Safety Published in the Public Law Journal of the State Bar of California

October 8, 2009: The Public Law Journal of the State Bar of California has published Jonathan's article, "A Practical Guide to Radio Frequency Emissions Safety." The article appears in the Journal's Summer 2009 edition (Vol. 32, No. 3).

This guide discusses how local government agencies can properly and effectively deal with RF safety issues that come up in connection with wireless siting cases (primarily cell sites, but also broadcast, ham radio, and commercial two-way users, as well).

While written primarily for California public law attorneys, attorneys around the country will find many important and useful gems in the article.

The editor of the Public Law Journal has kindly granted permission for me to reproduce the article here in PDF format.

Please follow this link to download the article download page.


Getting Much Clearer on Clearwire

October 7, 2009: I'm pleased to report that I had a very productive meeting with Clearwire, held at their request, (with several follow-ups). Suzanne Toller, Clearwire's outside counsel set up the meeting. She also provided a follow-up letter that is helpful to understand Clearwire's position on many of the key points I've been discussing with governments. At her invitation, I've posted Suzanne's letter here.

I've set up a separate page to give background information, and to link to the relevant documents, including Suzanne's letter.

I invite you to visit the new Clearwire page and read the documents for yourself.

Please follow this link to the Clearwire page.


2008 KTLF Stories Archive
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