Part 4 of 4 of our summary of the FCC’s September Notice of Proposed Rulemaking (“NPRM”) on “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies

As we noted in our previous three summaries, the FCC is proposing new rules on wireless siting issues that may impact local government’s ability to regulate the placement of these facilities.

In Part 4 of the NPRM, the FCC expands upon some of the questions it touched upon in Part 3, in the context of timelines for adjudicating collocation applications, to address the timeline question for all wireless applications, both collocations and new facilities, and what happens under that timeline.  As before, some background is required.

In Section 704 of the 1996 Telecommunications Act, Congress said that local government should act upon applications for all types of wireless facilities within a reasonable period of time, and that an applicant aggrieved by a local government’s action or inaction could go to court to enforce Section 704.

In 2008, the wireless industry petitioned the FCC to define what was a “reasonable period of time.”  What resulted was the 2009 “Shot Clock” ruling, in which the FCC found that in states that did not otherwise already have a state law on the issue, an application for a collocation should be acted upon in 90 calendar days and a new facility within 150 calendar days.  The “Shot Clock” ruling noted some states had shorter timelines (for example, in Florida, you have 45 business days to act on a collocation application.)

Understandably, some local governments did not like the FCC sticking its nose into their business, and the cities of Arlington and San Antonio TX, among others, took the FCC to court arguing that it did not have authority to impose a timeline on when they had to act.  Ultimately the case ended up before the US Supreme Court, which decided this past June that the FCC did, in fact, have authority to impose the Shot Clock on local government.

Having received the Supreme Court’s blessing for its authority to impose the Shot Clock, the FCC in Part 4 of the NPRM turned to addressing what should happen if a local government failed to meet the Shot Clock timelines in processing an application.

Under the Shot Clock ruling, failure to meet those timelines meant that the applicant could go to court and seek a judicial decision that their application should be granted.  But the FCC noted that such a remedy isn’t really helpful because of the time it takes for a case to wind its way through the judicial system.

So the NPRM, while stressing that it isn’t intending to revisit the issues it decided in the 2009 Shot Clock ruling, invites comment on six issues associated with same that could stand some clarification:

  1. Definition of collocation – under the Shot Clock, “collocations” have to be acted upon within 90 days – how should that be defined?  Should that mean collocations that are not “substantial changes” like in Section 6409(a) or any collocation whatsoever?
  2. Completeness of Application – under the Shot Clock, the time doesn’t start to run until an application is deemed “complete” (as long as the local government asked for additional info within 30 days of initial application).  The NPRM asks if it should clarify what “complete” means and when the clock should start running.
  3. Moratoria – The NPRM seeks comment on what happens to the Shot Clock if a local moratorium precludes making an application (thus preventing the clock from ever starting).  Since the Shot Clock ruling did not address moratoria, the NPRM wants comments on how that should be addressed.
  4. Applicability of the Shot Clock to DAS facilities.  Way back in Part 1 of this we discussed DAS/Small Cells and the NPRM’s proposals to exempt them from certain federal regulations.  In Part 4, the NPRM asks if DAS/Small Cells should be subject to the Shot Clock timeframes.  The NPRM preliminarily concludes that they should but requests comment on that conclusion.
  5. Preferences for municipal siting.  The wireless industry alleges that ordinances that create a preference for siting on public property over private property constitute “unreasonable discrimination” under Section 704 of the 1996 Telecommunications Act.  The NPRM wants comments on whether those preferences create discrimination in siting.  This is a very important item to comment upon to the FCC.  Local government that does express a preference in its regulations for siting on public property, in order to better plan and control the placement of wireless infrastructure in its community, would be severely harmed by a finding that such preferences in local ordinances are discriminatory.
  6. “Deemed Granted” remedy.  The NPRM wants comment on whether it should change the remedy for violations of the Shot Clock.  Now, an aggrieved applicant has to go to Court and get a judicial determination that it should be entitled to construct because the local government did not meet the Shot Clock.  The wireless industry wants the FCC to rule that if you don’t make a decision within the Shot Clock timeline, the application is “deemed granted” and you have no further say over its construction.  The FCC wants to know what you think about that idea and whether or not they even have the authority to make that the rule.

Responses to these items in Part 4, along with those regarding collocations in Part 3, should at a minimum be part of your community’s comments to the FCC.  Because of the federal shutdown and newly reopening we don’t have a timeline right now to file comments with the FCC, but we’ll post information once the timeline for comments is established and also instructions on how to file the comments electronically through the FCC’s ECFS (electronic comment filing system.)

For right now, please route this 4 part summary to your city or county attorney so they can help you prepare comments for filing with the FCC.  As we mentioned earlier, the timeline for filing will be 60 days from publication of the NPRM in the Federal Register, so once that date is established, we’ll let you know the deadline.

Click here for 4 part summary as one document.

Click here for entire FCC document.

Part 3 of 4: FCC’s September Notice of Proposed Rulemaking (“NPRM”) on “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies.”

This is Part 3 of 4 of our summary of the FCC’s September Notice of Proposed Rulemaking (“NPRM”) on “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies”.

Part 3 of the NPRM directly affects your ability to regulate the placement of wireless infrastructure, and you should, if nothing else, respond to this part of the NPRM with comments to the FCC. 

Before we get to the meat of the matter, we need to cover a little background and history.  Remember back in Part 1 we discussed briefly the National Programmatic Agreement (the “NPA”), which exempted certain collocations from environmental and historical reviews (at the federal level) if they met certain criteria, including not “substantially changing” the size of existing infrastructure when collocating.

The NPA also gave parameters to what would constitute a “substantial change” so that you could determine if you needed to undertake NEPA(environmental) or NHPA (historical) review or were eligible for the exemption.

In 2012, the wireless industry was able to have Congress include a little paragraph in the 2012 Middle Class Job Creation and Tax Relief Act, known as Section 6409(a), which says that “notwithstanding section 704 of the Telecommunications Act of 1996 [codified as 47 U.S.C. § 332(c)(7)] 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 or base station that does not substantially change the physical dimensions of such tower or base station.”

It goes on to define the term “eligible facilities request” as any request for modification of an existing wireless tower or base station that involves

(a)  collocation of new transmission equipment;

(b)  removal of transmission equipment; or

(c)  replacement of transmission equipment.

Finally, Section 6409(a) says that notwithstanding the above language, it shall not be construed to relieve the FCC from the requirements of the NHPA or NEPA.

Congress didn’t bother to define any of the terms contained in Section 6409(a) apart from what an “eligible facilities request” was.

In partial response to enactment of Section 6409(a), the FCC’s Wireless Bureau came out with “informal guidance” in January 2013 for local government to assist in interpreting what Congress meant by Section 6409(a).

In the “informal guidance” the Bureau took the NPA’s definition of “substantially change” and said that definition is what Congress intended to use, so that wireless collocations that did NOT meet the “substantially change” threshold would have to be APPROVED by local government.

The NPA definition of “substantially change is:

1)    the mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or

2)    the mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or

3)    the mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or

4)    the mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.

If the collocation causes at least one of the items above to be met, then it is a “substantial change” under the NPA.

That then brings us to the NPRM, and in Part 3, the FCC seeks to define all of those terms that Congress used but did not define in Section 6409(a), so as to avoid different interpretations based on judicial decisions, local interpretations, and other factors.

The NPRM also asks if, should the FCC define these terms and override local regulations that differ, there should be a timeline to phase in the federal rule to allow local government to revise their rules to harmonize with the federal rule.

The NPRM also notes that some states have enacted state laws that also create a streamlined approval process, some of which have different standards (specifically North Carolina….)

The NPRM asks for comments on how to define the terms Congress used in Section 6409(a).

For example, Verizon suggests that “existing wireless tower or base station” includes any structure, irrespective of whether it has communications equipment already or not.

With that definition, almost anything could be defined as a “collocation” which must be approved by local government under 6409(a) – building, streetlight, water tank, billboard, steeple.

It is imperative that local government file comments on how to define these terms to ensure that “collocations” are defined properly as additions to existing wireless infrastructure.

The NPRM also wants to know about “removal” and “replacement” definitions, since replacements of equipment that don’t substantially change the structure also are supposed to have mandatory approval.  As many applications we see now involve a provider upgrading/replacing equipment, particularly 4G installations, these definitions are also key to retaining some level of local regulation.  Most importantly, the NPRM asks if they should adopt the NPA definition of “substantially change” for Section 6409(a), and if so, what about situations where there are sequential incremental modifications which individually do not meet the “substantial change” definition but collectively do?

At what point could local government say the change is now “substantial” and mandatory approval is not required?  In addition, the NPRM asks if it should use different standards for concealed facilities.

Once past the definitions issue, the NPRM then tackles the question of what Congress meant by “may not deny and shall approve” and how to implement that language.

The FCC does tentatively conclude that the Section 6409(a) language applies to local government in a regulatory capacity and not as a landowner, so, for example, if you have a municipal tower and are leasing space to a wireless provider and another provider wants to collocate, or the existing provider wants to modify its facilities, you aren’t bound to approve that request as the landlord by Section 6409(a).

However, in your regulatory capacity, the FCC wants to know your thoughts “on whether, by directing that States and localities “may not deny and shall approve” covered requests, Section 6409(a) requires States and localities to approve all requests that meet the definition of eligible facilities requests and do not result in a substantial change in the dimensions of the facility, without exception and/or discretionary review.

 

We also seek comment on whether there are any special circumstances under which, notwithstanding this unqualified language, Section 6409(a) would permit a State or local government to deny an otherwise covered request.

 

We further seek comment on whether States and localities may make the grant of a covered request subject to conditions on or alterations to the request. If so, what types of conditions or alterations may they require that would be consistent with Section 6409(a)? In particular, we seek comment below on whether and/or to what extent States and localities may require any covered requests to comply with State or local building codes and land use laws and whether States and localities are required to approve an otherwise covered modification of a tower or base station that has legal, nonconforming status or that does not conform to a condition or restriction that the State or locality imposed as a prerequisite to its original approval of the tower or base station.

 

The NPRM also wants to know to what extent you as the local regulator may require any covered requests to comply with State or local building codes and land use laws.

1)    For example, must you grant a facilities modification request that would result in an increase in height above the maximum height permitted by an applicable zoning ordinance?

2)    Can you require a modification or collocation to be in compliance with general building codes or other laws reasonably related to health and safety such as load-bearing limits on applications that otherwise meet the standard for approval under Section 6409(a)(1).

3)    Can you condition the approval of a modification on the underlying structure’s compliance with the hardening standards under TIA-222 Revision G, Structural Standards for Antenna Supporting Structures and Antennas?

4)    What about your ability to deny an application for an otherwise covered modification if the structure, as modified, would not meet the fall zone or setback distance that your ordinance requires?

5)    What about facilities that were originally approved as concealed but the modifications proposed would diminish that concealment – do you have to approve those under Section 6409(a)?

As you can see, the FCC wants input from local government on all of these issues and it is in your interest to provide that input.  The NPRM also concludes, consistent with the January 2013 Informal Guidance, that Section 6409(a) does not preclude local government from requiring an application to be made by a provider seeking approval for a collocation or modification of an existing facility.

In fact, the FCC notes that the only way you can determine IF the proposal meets the Section 6409(a) requirements is to accept an application and review the information contained in it.

The NPRM also solicits comment on what should (and should not) be required to be provided as part of the application process, and also whether an application, once determined to be eligible under Section 6409(a), should be administratively approved or if it still can go before some sort of board or hearing for approval (keeping in mind the requirement that it must be approved).

The final portion of Part 3 of the NPRM deals with what happens once an application under Section 6409(a) is made.

The FCC wants to know if 90 days (the FCC’s “shot clock” timeline for collocation application processing”) is a sufficient timeline to approve these requests, or if a shorter timeline is appropriate given the fact that you must approve the application.

What happens if you enact a moratorium on all applications (to prevent applicants from making an application that has to be approved?)  The NPRM proposes that a moratorium will not have any effect on whatever timeline is adopted to approve these requests.

Finally, the NPRM’s last avenue of inquiry in Part 3 is what happens if local government fails to act on an eligible request within 90 days or whatever timeline standard is adopted.  Does the applicant go to court (as currently required under similar shot clock circumstances) to get their permit or should the application be “deemed approved” if not adjudicated in the required time, and if so, whether that conclusion effectively preempts all local regulation and raises 10th amendment constitutional issues about federal/state law. 

The FCC suggests as a solution that an aggrieved applicant file a Petition for Declaratory Ruling with the FCC alleging the local government’s failure to comply with Section 6409(a), and the FCC would then issue an opinion on the matter that would take precedence over the local government’s action (or inaction).  The FCC already does this in similar contexts, where local government attempts to regulate RF exposure, which is exclusively the domain of the FCC.

Part 3 of the NPRM could significantly alter local government’s ability to regulate collocations and modifications of wireless facilities.

The FCC should hear from you about how you feel about these proposals and you should provide them with examples of how these “collocations” and “modifications” frequently have serious impacts on the health, safety and welfare of your constituents, and the aesthetics of your community.  In Part 4 of our series, we’ll explore the final portion of the NPRM, dealing with what the FCC thinks should happen if you don’t meet the FCC’s “shot clock” timelines for adjudicating applications for collocations (90 days) or new towers (150 days).        

Next – Part 4 to conclude our summary of FCC’s September Notice of Proposed Rulemaking (“NPRM”)

Click here for entire FCC document

Samsung Announces 5G Technology Advancement

This recent news item caught our attention from the New York Times Technology Section:

By 

Published: May 13, 2013
SEOUL — Samsung Electronics said Monday it had made a key breakthrough in developing mobile technologies for so-called fifth-generation networks that would provide data transmission up to several hundred times faster than the current fourth-generation, or 4G, technology.

News from the technology industry, including start-ups, the Internet, enterprise and gadgets.

The breakthrough helped Samsung overcome limitations in transmitting large volumes of data over long distances using a broad band of frequencies, the company said in a news release. Samsung, the world’s biggest maker of mobile phones, said it would accelerate the research and development to commercialize those technologies by 2020.

“Samsung’s latest innovation is expected to invigorate research into 5G cellular communications across the world,” the company said. “The company believes it will trigger the creation of international alliances and the timely commercialization of related mobile broadband services.”

Once commercialized, 5G mobile technology will allow users to transmit huge data files, like high-quality digital movies, “practically without limitation,” it said.

The European Union announced earlier this year a plan to invest €50 million, or $65 million, in research to deliver 5G mobile technology by 2020.

OUR VIEW:

As we have repeatedly said, faster speeds and more services are what wireless will provide in the future….this is an expected development, using a different part of the radio spectrum, but be assured that this means more overall spectrum being deployed and that means more infrastructures will need to be built.   So READY or NOT…Here they come!

Perspectives on Wireless Infrastructure

Join us as we conduct a FREE webinar Wednesday, May 8th at 11am EST.  We will be discussing the legal considerations of federal legislation and how this effects your community.

Anthony Lepore, Director of Regulatory Affairs will discuss the requirements of Section 704 of the Telecommunications Act of 1996, details of the FCC Shot Clock, explain Section 6409 in the Middle Class Tax Relief and Job Creation Act of 2012, go over the FCC guidance and much more!

Susan Rabold, Project Planning Manager will discuss briefly what is a wireless master plan, how it can help you stay in compliance with federal laws while maintaining authority in your own community.

Go to http://www.CityScapeGov.com to register!

Happy 40th Anniversary to the Cell Phone

Phone evolution copyMobile phone technology has come a long way since the first mobile phone call was made 40 years ago today, changing life forever- but there is a lot more innovation to look forward to, according to one expert.

It was back on April 3 1973 that Motorola employee Martin Cooper made a call in New York on a Motorola DynaTAC – widely regarded globally as the first public cellphone call.

The device was nine inches tall, comprised 30 circuit boards, had a talk-time of 35 minutes, and took 10 hours to recharge.

Four decades on, a worldwide telecoms industry with annual revenues of £800 billion has grown rapidly based on wide choice, falling prices and an array of technologies, resulting in the average mobile being used to take photos, play music and games, send emails, download maps, watch video clips, all as well as talking and texting.

Dr Mike Short, an expert from the Institution of Engineering and Technology, said Mr Cooper’s phone call is the first public call people recognise as being a cellular mobile call.

He said the 10 years following that first call were “very much developmental”, with research being carried out in laboratories before services were launched in 1981 in the US.

“Since its first use 40 years ago, the mobile phone has completely changed our lives.

The first decade was a research or a ‘demonstrator’ phase, rapidly followed by Analogue networks deployed over 10 years from the early 1980’s largely based on carphones and used in business in the developed world.

“This soon led to the digital decade mainly between 1993 – 2003 when consumerisation and globalisation of mobile really took off.

“This led to a further data adoption phase with the arrival of 3G and during 2003 – 2013 access to the Internet and the wider use of Smartphones became a reality,” he said.

The two most significant developments in mobile phone technology have been the widespread availability of devices and their ability to access the internet, according to Dr Short.

“In the early days of mobile, consumerisation was not considered. It was made for men in suits in business, whereas consumerisation followed much later.

“And then access to the internet followed much later again. The first smart phones weren’t until about five years ago. So the pace of change has actually sped up over the 40 years, particularly in the last 15 to 18 years,” he said.

Dr Short expects mobile technology to continue to evolve and said people can expect even more developments in future.

“More changes are expected. The early days of mobile were all about voice, whereas today it’s much more about data.

“And the point about data is that we can carry voice calls over the data channel, but in future we’ll move towards fuller data services such as video – much more video to video calling, much more screens on the wall in your home, maybe more video television downloaded, catch-up TV, that sort of thing.

“So there’s a lot more innovation to come, particularly in the data and video worlds,” he said.

Mobile phone users will have noticed these changes in the last few years, as phones have become more affordable and sit lightly in the palm of their hand – but innovators are working to enhance these aspects of modern devices further.

Dr Short said: “The cost has already fallen a long way. What tends to happen is you get more functionality per pound spent.

“That would include more memory, that would include more features, that would include more capability to access the internet at higher speeds.

“The weight has dropped dramatically already, but we’re seeing, probably this year, the first watch-based phones.”

With improvements and changes implemented so frequently, Dr Short said it is hard to know what exactly to expect in the next 40 years, but it is safe to assume millions more people in the world will have access to mobile phones.

“It’s very difficult to predict 40 years time because the pace of innovation is speeding up. I would say that we’ll all be mobile, globally, everyone will be mobile.

“I’d also say that we’ll be connecting many more machines via wireless mobile technology as well.

“The world of around seven billion devices connected today should be in excess of 70 billion connected devices in 40 years time,” he said.

As Reported in the Huffington Post  

FCC Offers “Guidance” on Local Government Tower Siting Issues

Loyal readers may recall we previously wrote about new federal laws that affected local government’s authority over certain types of wireless siting applications.  In Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, Congress said that local governments SHALL approve (and may not deny) applications for an “eligible facility” that seeks to modify an existing tower or other structure (in other words, a co-location application or one that involves the removal or replacement of existing equipment).  Congress limited this provision to applications that did not “substantially change” the physical dimensions of a tower or base station, but did not bother to define what it meant by “substantially change”.  We predicted that there would be some guidance on what was meant by “substantially change” and the first such guidance has now been released by the FCC.

The Wireless Telecommunications Bureau of the  FCC, in a Public Notice dated January 25, 2013 (“Public Notice”), has offered “interpretive guidance” regarding Section 6409.  While not a formal rulemaking proceeding or adjudication by the agency, the Public Notice at least sheds some light on the issues involved and how the FCC views them.

The Public Notice notes initially that while it has not received any formal petition to interpret Section 6409 nor is it aware of any court decisions interpreting Section 6409 yet, it has received numerous informal inquiries from the wireless industry and local governments on the interpretation of Section 6409 and wished to set forth its “guidance” regarding those provisions.

So what guidance did the FCC Offer?

1.  What does “substantially change” mean? According to the FCC, “substantially change” should be defined (as the wireless industry has previously suggested) by the FCC’s prior definition of that term in the context of the National Programmatic Agreement for the Collocation of Wireless Antennas (47 CFR §1, Appendix B), and which it further adopted in the 2009 Declaratory Ruling on the timeline for processing colocation applications (the “Shot Clock Ruling”).  (As an aside, the Shot Clock Ruling is currently before the US Supreme Court where two local governments are challenging the FCC’s ability to impose a timeline on their application and approval processes.  A decision on that issue will be issued by June).

So what is that definition?  “Substantially change” means any proposal that involves:

A) the mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or

B) the mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or

C) the mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or

D) the mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.

IF you have an application for a facility that does not exceed these standards, it is NOT a substantial change and you are obligated to approve that application under Section 6409.

2.  What is a “wireless tower or base station?”   Congress also didn’t bother to define this term, so the FCC has again turned to the National Programmatic Agreement and stated that it was, in its opinion:

“any structure built for the sole or primary purpose of supporting FCC-licensed antennas and their associated facilities.   The Commission has described a “base station” as             consisting of “radio transceivers, antennas, coaxial cable, a regular and backup power supply, and other associated electronics.” Section 6409(a) applies to the collocation,                 removal, or replacement of equipment on a wireless tower or base station. In this context, we believe it is reasonable to interpret a “base station” to include a structure that                     currently supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station.   Moreover, given the absence of any limiting statutory         language, we believe a “base station” encompasses such equipment in any technological configuration, including distributed antenna systems and small cells.”

Note that this definition is an expansion of the language in the granddaddy of all wireless legislation, Section 704 of the 1996 Telecommunications Act (47 USC §332(c)(7), which only covered “personal wireless services”.  The FCC interpreted Congress’ use of the phrase “wireless tower or base station” to mean more than just those types of facilities covered by “personal wireless services”.

3.  Can local government still require an application?  The FCC took the position that although qualifying applications under Section 6409 MUST be approved by local government, implicit in that “approval” is the requirement for an application to be submitted for such administrative approval.

4.  Is there a time limit on processing such application for approval?  The FCC noted that while Congress did not establish a time period, since applications under Section 6409 were by their nature colocations, the time periods specified in the 2009 FCC Declaratory Ruling (“Shot Clock”) should apply, and thus 90 days should be the maximum period for reviewing such applications prior to approval.  HOWEVER, note that in some states, state law prescribes a shorter period of time for review and adjudication of colocation applications, so you’ll need guidance from your legal staff on what  your applicable timeline may be.  ALSO note as mentioned above that the “Shot Clock Ruling” is under review by the Supreme Court so this particular guidance may be stayed depending on what happens at the Court.

5.  What’s it all mean?  The federal government (with the encouragement of the wireless industry) has in a number of proceedings evidenced a desire to further expand wireless infrastructure coverage across the United States to develop a wireless network that is commensurate with our wired network.  Legislation such as Section 6409 and agency interpretations of same are all part of that effort and all work to dilute your ability to locally regulate this particular type of infrastructure.  You can expect current and future applicants to point to Section 6409 and this “guidance” and claim there is no “substantial change” and thus demand approval of their applications.  However, unstated in the FCC’s “guidance” is how to deal with these applications, which “must” be approved, where there are serious safety and tower loading concerns.  If the colocation application raises a structural or stability issue, what is a local government to do when faced with a purportedly compulsory approval requirement?    This is likely the situation that will generate the first set of cases that go before a court for a decision.  We would hope that a court would favor a local jurisdiction’s decision on safety/structural concerns but it is unclear at this time what might happen.

While this FCC “guidance” is merely that and not an official rule-making or adjudication, we would suggest that any court looking at this issue in the future is likely going to defer to the FCC’s interpretations of these terms and issues in reaching a decision on a particular application that is being litigated.  Of course, we’re always here to help guide you through these issues and make sure you stay on the right side of the regulations.

T-Mobile and MetroPCS strike a deal

BERLIN (AP) — Struggling cellphone companies T-Mobile USA and MetroPCS Communications are set to merge, in a deal that will create an operator with more than 40 million subscribers.

In a joint statement, the two companies said Wednesday that Deutsche Telekom AG, the owner of T-Mobile USA, will hold 74 percent of the new business, while MetroPCS’s shareholders will hold the remainder, as well as receiving a payment of about $1.5 billion.

“The combined company, which will retain the T-Mobile name, will have the expanded scale, spectrum and financial resources to aggressively compete with the other national U.S. wireless carriers,” the two said.

Both companies have struggled in the highly-competitive U.S. cellphone market.

And even after the combination with Dallas-based MetroPCS, which has 9.3 million subscribers, T-Mobile USA — the country’s fourth-largest cellphone company with 33.2 million subscribers — will still trail the market’s No. 3, Sprint Nextel Corp.

However, the deal would give T-Mobile USA, which is based in Bellevue, Washington, access to more space on the airwaves, a critical factor as cellphone carriers try to expand their capacity for wireless broadband.

Last year, AT&T struck a deal to buy T-Mobile USA for $39 billion for much the same reason. That was shot down by regulators, who believed competition would suffer if the second-largest cellphone company were to gobble up the fourth-largest.

“We are committed to creating a sustainable and financially viable national challenger in the U.S., and we believe this combination helps us deliver on that commitment,” Deutsche Telekom chief executive officer Rene Obermann said.

Deutsche Telekom said the combined company would have revenues of around $24.8 billion based on analysts’ estimates, and cost synergies are expected to be worth $6 to $7 billion.

The deal still has to be agreed by shareholders and will require regulatory approval.

The regulatory concerns this time round appear set to be much milder than the proposed deal involving AT&T. Both companies are relatively small, and T-Mobile USA has been losing subscribers for the last two years.

A linkup would be complicated by the fact that MetroPCS and T-Mobile USA use different network technologies. That means MetroPCS phones would not work on T-Mobile USA’s network, and vice versa. However, both companies are deploying the same “fourth-generation” or “4G” technology, so they’re on a path to harmonizing their networks.

Deutsche Telekom’s CEO Obermann said the new company will have the “resources to expand its geographic coverage, broaden choice among all types of customers and continue to innovate, especially around the next-generation LTE network.”

This consolidation of competitors may impact local government because typically with consolidations come changes to wireless infrastructure in order to blend the two companies’ assets in an efficient manner.  Local government could see an uptick in applications for site modifications arising from the merger if it is approved and completed.