Choosing A Wireless Consultant

Choosing a Wireless Consultant

Some municipalities wish to retain a wireless consultant to assist with the preparation of new or revised tower regulations. This is understandable since many municipal officials are not as familiar with tower regulations as they might be with typical zoning regulations. If a municipality elects to retain a consultant to assist it with tower regulations, the municipality would be well served if it chose a well qualified consultant.

As in any industry, there are good and bad wireless consultants. A good wireless consultant has the necessary qualifications and experience to assist a local municipality in a meaningful way. Typically the good wireless consultant is a licensed engineer (often an electrical engineer) or a qualified radio frequency engineer (note that radio frequency engineers are not licensed by the State of New York). Choosing an unqualified consultant will not protect the municipality; in fact an unqualified consultant will likely expose the municipality to increased risk of litigation.

Here are some factors to consider when choosing a wireless consultant.

1. Be wary of a consultant who preaches fear. There are certain consultants who routinely claim that absent his/her services, the wireless industry will embark on an intense assault on the municipality resulting in the construction of numerous unnecessary towers in the town. These types of fear tactics are unnecessary and untrue. Wireless carriers are not known for installing unnecessary facilities; it is simply too expensive and bad business to do so.

2. Carefully scrutinize a consultant’s draft tower law. There are certain consultants who have “canned” tower laws that are offered to municipalities either free or for a nominal charge provided that municipality contracts with that consultant to review any and all future wireless applications. In my experience, these “canned” tower regulations have been written by unqualified individuals with little knowledge of existing NYS and federal law. Unfortunately, because the author of these types of laws are neither attorneys nor qualified, they simply lack the knowledge that their law includes illegal provisions. A town which enacts such a law increases its exposure to litigation.

3. Be cautious about a consultant that demands to take control of the review process away from the municipal board with permitting jurisdiction. This is not legally permissible in NY and often leads to an over-burdensome, excessive and expensive review in violation of federal and state law. A tell tale sign of this is a consultant who demands that his/her process be followed without exception. I have witnessed some consultants control the entire review process for a year or longer with little or no input from the permitting jurisdiction. This abdication of the permitting jurisdiction’s authority presents legal issues with the review process.

4. Question the length of review of a typical application. Often times the unqualified consultant will spend a year or more reviewing an application (even though the consultant is not qualified to review the technical documentation required to be submitted). Wireless application are far from complicated. Many unqualified consultants pretend that the application is complicated and complex; don’t be fooled, they are not.

5. Be cautious with a consultant who emphasizes that his/her services will not cost the community anything; that the carrier will pay for everything. The consultant who bills an excessive amount and has the town attempt to recoup the fees through an escrow account to be funded by the applicant present special risks to the municipality. I have had detailed communications with consultants who are totally ignorant of NYS law that places substantial limitations on a municipality’s ability to require a “blank check” requirement.

6. Excessive application fees for tower applications present potential legal issues, especially when the application fees for other uses are substantially less. Example: a new tower application fee in certain “canned” tower laws can be as high as $5,000, while the fee for the same type of application for a different use may be 25 times less (i.e. $200). There is no justification for such discrepancy except for the fact that the consultant wants to provide a windfall for the town.

The issues described above are only a handful of concerns to consider when choosing a wireless consultant. I want to emphasize the seriousness of these issues by making reference to the current Petition before the FCC which requests the FCC to mandate reasonable time frames within which zoning applications must be completed. The Petition was filed in response to what some consider as an abuse of the zoning process by many local municipalities and unqualified consultants.

Sprint Files Petition for Certiorari for County of San Diego Case

In September, 2008, the Ninth Circuit Court of Appeals reversed the prior Ninth Circuit three-judge panel decision in Sprint v. County of San Diego. You may recall that Ninth Circuit’s opinion held that to establish a violation of Sections 253(a) and 332(c)(7) of the Telecommunications Act of 1996, a plaintiff must demonstrate an outright prohibition or an effective prohibition. A telecommunications law that could potentially prohibit wireless services is not in violation of the Act.

On December 10, 2008, Sprint filed a Petition for Certiorari with the United States Supreme Court seeking review of the Ninth Circuit’s decision. On January 12, 2009, PCIA, CalWA and NewPath Networks filed an Amicus Brief and NextG Networks and the DAS Forum filed a separate Amicus Brief, both in support of Sprint’s Petition.

The California Wireless Association has some great information on this case with some very informative links.

See this link.

New York State Wireless Association 2009 Trade Show Scheduled

The New York State Wireless Association, a wireless industry association dedicated to the advancement of wireless technology through out the State of New York, has scheduled its second annual trade show for May 5-May7th, 2009. The spectacular event will be held at the Turning Stone Casino located in the heart of Central New York’s scenic Mohawk Valley.

The event should appeal to members of the wireless industry as well as state and local governmental officials interested in current wireless issues. The 2009 Trade Show is packed with interesting activities and discussion groups concluding with a round of golf or a tour of an existing wireless facility.

Should be a fantastic event.

How about a link?

FCC Extends 700 Mhz Construction Deadlines

In response to the DTV Delay Act (now there is a great title), the FCC extended the 700Mhz license terms and construction deadlines by 116 days to coincide with the same delay of the digital TV conversion. Nothing really exciting here.

Link is here.

NYS Office of Technology Seeks Voluntary Partnerhips

In its continued effort to provide a single and reliable wireless network for all first responders within the State of New York, the NYS Office of Technology is seeking voluntary partnerships with local governments to share infrastructure and radio frequencies. For further information see the following link.

NY Statewide Wireless Network Advisory Council Meeting-Live Webcast

The NY Statewide Wireless Network Advisory Council Meeting will hold a live webcast on March 26 beginning at 10 a.m.  To view the webcast you will need Real Player or Windows Media Player, which are readily available if you do not have these players already on your computer.  The specific links for these webcasts are:

Real Player: http://interface.audiovideoweb.com/lnk/avwebreallivemt1077/live.rm/play*

Windows Media Player: http://pointers.audiovideoweb.com/asxfiles-live/1c2winlive6580.asx*

Of course, anyone in Albany, NY is free to attend in person at:

New York State Chief Information Officer /
Office for Technology
State Capitol
Empire State Plaza ,
Albany, NY
Meeting Room 6

Might be a good chance to see what is new, if anything with the SWN and M/A Com.

Class Action Lawsuit Filed Against Apple (iphone) and AT&T

RCR Wireless News reports that a new class action lawsuit has been filed against Apple and AT&T Mobility claiming that the iphone and 3G network provided by AT&T do not adequately perform.  The RCR article includes the following quote from the class action:

The 3G iPhones [both the 8 GB and 16 GB models] do not and cannot adequately perform due to the insufficient 3G bandwidths and AT&T infrastructure,” stated the Jan. 30 class-action lawsuit filed against Apple and AT&T Mobility in U.S. District Court for the Southern District of Florida. “Additionally, the iPhones have had well-known and documented issues regarding the premature ‘wear-and-tear’ of the iPhones’ housing, including the formation of hairline cracks in the iPhones’ casing.

It appears that the class action, which reportedly does not seek any specified monetary damages, is as much an attack on the wireless network provided by AT&T, as it is on the iphone.  AT&T is the carrier that provides the wireless service for the iphone.

To review the RCR article see this link:

http://www.rcrwireless.com/article/20090203/WIRELESS/902039975/1081#

NYS Office of Technology Seeks Reimbursement from M/A Com, Inc.

According to a Jan. 15, 2009 Press Release issued by the NYS Office of Technology (NYSOFT), M/A Com, Inc. has failed to deliver a satisfactory and acceptable public safety communications network. NYSOFT claims that such failure constitutes a breach of contract under the agreement between the parties and NYS is seeking reimbursement from M/A Com of approximatelty $54 million.

Follow this link to the NYS Office of Technology website: link

Shortly after the release of NYSOFT’s Press Release, M-A/Com reportedly issued the following in response:

“M/A-Com will take all necessary steps to protect the company’s rights under the contract.”

Although I haven’t followed this too much lately, I don’t recall whether M-A/Com has provided a detailed response for the public to review concerning the 19 alleged problems.  Much from M-A/Com has been mostly general denials.

Lets see some details M-A/Com; otherwise people might start to believe the claims of the NYSOFT.

Back in Business

After a brief hiatus to deal with some technical issues, the blog is back.  Need to provide an update on several topics, the first of which will be the threatened litigation involving M/A Com and the NYS Office of Technology and the development of the NYS wireless network.

Some Q & A Regarding Cell Tower Laws

This article is intended in include typical questions and answers that many municipalities have when confronting the enactment of a new or revised cell tower law. I intend to keep this article updated on a fairly regular basis by adding new questions and answers as frequently as my schedule permits.

My hope is that the information provided will be used as a tool to assist municipal officials who are contemplating a new cell tower law or revised regulations. It is also intended to debunk some of the misconceptions offered as a means to mislead municipalities into enacting burdensome and over reaching laws many of which involve significant legal risks and exposure.

Q1: Does the wireless industry object to a local municipality’s regulation of cell towers?
A1:In my experience, no. I believe that the wireless industry generally does not object to regulation of cell towers as long as the regulations are fair, well balanced and in compliance with established law. Unfortunately, there are many local cell tower laws that appear to be intended to prohibit or “effectively prohibit” cell towers from certain areas, which is a clear violation of the Telecommunications Act of 1996. The enactment of fair and well balanced regulations that (i) identify reasonable application requirements and (ii) create concrete standards by which an application is to be reviewed usually leads to a prompt and efficient review process, something the industry favors.

Hopefully some of the Q & A provided below will assist municipalities avoid some typical pit falls when it comes to enacting new cell tower laws.

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