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WiMAX service—high speed over the air broadband service for your computer, home or office which covers an entire city or county—is being rolled out in more than 100 U.S. metropolitan areas in 2009 and 2010. Clearwire, Comcast and some other cable operators are starting to offer it for fixed and mobile broadband service. This may be how high speed broadband service is brought to rural areas under the federal stimulus legislation. Many new cell towers and antennas (in the 100,000 range) will likely be needed for this new service.

WiMAX poses unique challenges for landowners and municipalities. It may provide existing cell tower sites with more revenue if a lease amendment is required to add WiMAX antennas. Varnum offers model WiMAX leases drafted from a property owner's perspective.

Many municipalities are now considering providing wireless or Wi-Fi service, either for use by their own field personnel, for the public in parks and selected buildings or available citywide. We have assisted cities on these types of projects as they consider whether private companies or the city should provide the service, and we have advised on contracts with private companies for Wi-Fi service.

Among the legal issues such projects pose for cities and their attorneys are:

  • Good legal and technical definition of the service to be provided
  • Good descriptions of where the service will be provided
  • Clear definition of who will provide customer service and technical support to users
  • Addressing potential RF interference issues in agreements for Wi-Fi access points to be located on municipal buildings or in the rights of way

Among the federal laws involved:

  • CALEA (for systems providing service to the public)
  • Making sure the FCC's OTARD rules (preempting local zoning and other requirements) do not apply
  • Communications Act Section 253 relating to not preventing the provision of telecommunications service and not discriminating on certain right of way related matters

Wireless and Wi-Fi Projects

We have represented communities on wireless and Wi-Fi projects that would provide service for the residents of the municipality, those providing only service to public safety personnel and those doing both. We have assisted such communities on project evaluation, contracts by which the municipality obtains service from a provider, and contracts and pole attachment agreements by which a private company gets permission to put its Wi-Fi access points on light poles and municipal property or in rights of way.

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