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Cellular Antennas on Special District Property: The Opportunity and the Risk

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Cellular Antennas on Special District Property: The Opportunity and the Risk at 2013 California Special Districts Association

Cellular Antennas on Special District Property: The Opportunity and the Risk at 2013 California Special Districts Association

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  • 1. Telecommunications Law
  • 2. Cellular Antennas on Special District Property: The Opportunity and the Risk Gail A. Karish Matthew K. Schettenhelm Best Best & Krieger LLP September 17, 2013 Telecommunications Law
  • 3. Do you have any obligation to license your property to cell-phone companies? Telecommunications Law
  • 4. No. Telecommunications Law
  • 5. (Or, you shouldn’t.*) *FCC rulemaking? Telecommunications Law
  • 6. Do you “regulate” cell tower placements? Telecommunications Law
  • 7. No. Telecommunications Law
  • 8. You are a property owner. Telecommunications Law
  • 9. It is the company’s obligation to ensure that it has all regulatory approvals. Telecommunications Law
  • 10. This talk will have two parts. Telecommunications Law
  • 11. (1) regulatory framework Telecommunications Law
  • 12. (2) how you protect yourself as a property owner Telecommunications Law
  • 13. What regulations apply here? Telecommunications Law
  • 14. Typically, local zoning approval Telecommunications Law
  • 15. (May be easier to get zoning approval on special-district property than elsewhere) Telecommunications Law
  • 16. 47 U.S.C. § 332(c)(7) Telecommunications Law
  • 17. Generally preserves local zoning authority, subject to five limitations Telecommunications Law
  • 18. 1. A State or local government may not “prohibit” the provision of service. Telecommunications Law
  • 19. 2. It may not unreasonably discriminate among providers. Telecommunications Law
  • 20. 3. Any decision to deny must be in writing and supported by “substantial evidence.” Telecommunications Law
  • 21. 4. A local government must act within a “reasonable period of time” in light of the nature of the application. Telecommunications Law
  • 22. The FCC reasonably imposed 90 and 150-day “shot-clocks” Telecommunications Law
  • 23. The Supreme Court upheld the FCC Telecommunications Law
  • 24. City of Arlington v. FCC, No. 11-1545 Telecommunications Law
  • 25. 5. The local government must not regulate based on the effects of radiofrequency emissions Telecommunications Law
  • 26. 47 U.S.C. § 1455 Telecommunications Law
  • 27. 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 physically dimensions of such tower or base station. Telecommunications Law
  • 28. “Eligible facilities request” is any request to modify an existing tower or base station that involves: “(A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment.” Telecommunications Law
  • 29. Congress left all the other key terms undefined Telecommunications Law
  • 30. & Telecommunications Law
  • 31. Didn’t clarify if it intended to reach proprietary, or only regulatory, action Telecommunications Law
  • 32. In January, FCC issued non-binding “guidance” Telecommunications Law
  • 33. • Defines “substantially change” through criteria developed in a different context (historic preservation). • no “substantial change” if an addition extends a facility less than 20 feet in any direction. Telecommunications Law
  • 34.  Defines “substantially change” through criteria developed in a different context (historic preservation). • For example, no “substantial change” if an addition extends a facility less than 20 feet in any direction.  Offers broad definition of “base station” that could make statute apply to many facilities. Telecommunications Law
  • 35. Historic Site – Post Guidance? Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array. Telecommunications Law
  • 36. Stealth Site – Now 100’ monopole disguised as a flagpole constructed to conceal six panel antennas within its exterior. Located on Brightseat Road alongside I-95 in Prince George’s County, Maryland. Telecommunications Law
  • 37. Stealth Site – Post Guidance? Illustration shows the potential impact of an approximately 20’- high extension to support a colocation of antennas in a typical triangular platform array (partially shown at top of frame) and smaller colocation in a flush-mount attachment configuration atop the existing monopole. Telecommunications Law
  • 38. Rooftop Stealth Site – Now Two-story office building located on Layhill Road at Bonifant Road in Montgomery County with antennas from three carriers permitted by Special Exception and either concealed within the faux screening atop the penthouse on the roof, or painted to match the exterior of the screening or brick walls. Telecommunications Law
  • 39. Rooftop Stealth Site – Post Guidance? Illustration of a tower-like structure constructed to support co-location antennas approximately 20’ above existing antennas. Telecommunications Law
  • 40. We expect the FCC to launch a rulemaking, perhaps within the month Telecommunications Law
  • 41. Educating the FCC could be important Telecommunications Law
  • 42. Part II: How should you structure the deal? Telecommunications Law
  • 43. 10 points 1. Control the drafting process 2. Establish the structure (lease/license) 3. Define what you are granting 4. Establish the term 5. Set the rent 6. Address subletting and assignment 7. Forbid interference 8. Clarify removal responsibilities 9. Address termination 10.Include standard terms Telecommunications Law
  • 44. (1) Control the drafting process Telecommunications Law
  • 45. Company’s form agreements likely will be highly slanted in their favor Telecommunications Law
  • 46. Consider developing your own Telecommunications Law
  • 47. (2) What are you granting the company? Telecommunications Law
  • 48. Usually ok to structure as a license or a lease Telecommunications Law
  • 49. (3) What access are you granting? Telecommunications Law
  • 50. Define specifically what facilities may be placed, and where Telecommunications Law
  • 51. Do not freely allow “improvements”: require specific plans, subject to your approval. Telecommunications Law
  • 52. Avoid: “approval will not be unreasonably withheld, delayed, or conditioned” Telecommunications Law
  • 53. If you allow replacement of existing facilities, clarify that new equipment cannot differ in size, impact, aesthetics, etc. Telecommunications Law
  • 54. Address how the company may access its facilities – and when it will do so . . . Telecommunications Law
  • 55. May the provider use common areas? Must it obtain supervised access? Must it provide advanced notice? May it use your access roads or obtain its own? Are there other security risks that need to be addressed? Telecommunications Law
  • 56. Address how the provider will obtain and use electricity at the site Telecommunications Law
  • 57. If you have aesthetic concerns, address them directly Telecommunications Law
  • 58. (4) What is the term? Telecommunications Law
  • 59. Typically structured as consecutive series of 5-year terms, spanning 20 or 30 years total Telecommunications Law
  • 60. Avoid “options to lease” particular sites, which may prevent you from recovering full fees for a particular location Telecommunications Law
  • 61. Avoid long delivery or construction periods pre-payment; begin payments immediately Telecommunications Law
  • 62. If provider requests a “due diligence” period, don’t give this time away for free – and ensure that provider indemnifies you. Telecommunications Law
  • 63. (5) What should you charge in rent? Telecommunications Law
  • 64. Two elements: Telecommunications Law
  • 65. (1) Base rent Telecommunications Law
  • 66. (2) Collocation fees Telecommunications Law
  • 67. Base rent for tower typically between $2,000 - $5,000/month Telecommunications Law
  • 68. Companies often offer low annual escalators Telecommunications Law
  • 69. Can collect collocation fees from initial licensee or directly from later subtenants Telecommunications Law
  • 70. Address late fees (interest) and hold-over fees (100%-200% of then-current rent) Telecommunications Law
  • 71. (6) Subletting and Assignment Telecommunications Law
  • 72. Do not permit subletting/collocation without your permission Telecommunications Law
  • 73. • Have licensee waive rights under Civil Code §§ 1995.260, 1995.270 • 47 U.S.C. § 1455 should not affect contractual restrictions* Telecommunications Law
  • 74. (7) Interference Telecommunications Law
  • 75. Ensure that tenant cannot interfere with your operations – or those of any existing tenants. Telecommunications Law
  • 76. Burden should be on newcomers Telecommunications Law
  • 77. Be sure that it is not on you Telecommunications Law
  • 78. (8) Removal Telecommunications Law
  • 79. May depend on type of facility Telecommunications Law
  • 80. In some cases, you might assume ownership. Telecommunications Law
  • 81. In others, licensee should bear the duty to remove, at its cost. Telecommunications Law
  • 82. (9) Termination Telecommunications Law
  • 83. Establish events of default justifying termination: Telecommunications Law
  • 84. Non-payment Telecommunications Law
  • 85. Habitual late payment Telecommunications Law
  • 86. Violation of any term, if not cured Telecommunications Law
  • 87. Bankruptcy Telecommunications Law
  • 88. Carefully define when the provider can terminate Telecommunications Law
  • 89. Either prohibit volitional terminations or requirement payment (e.g. rent for remainder of term or 1224 months of rent) Telecommunications Law
  • 90. (10) Standard terms Telecommunications Law
  • 91. Insurance: check with risk-assessment Typical: general liability, auto liability, employer’s liability, all-risk property, and workers’ compensation Telecommunications Law
  • 92. Hazardous substances: strictly prohibit Telecommunications Law
  • 93. Require indemnification Telecommunications Law
  • 94. No relocation assistance Telecommunications Law
  • 95. What to do after you contract? Telecommunications Law
  • 96. Monitor compliance, and . . . Telecommunications Law
  • 97. . . . after you have a great deal . . . Telecommunications Law
  • 98. don’t change it. Telecommunications Law
  • 99. Be wary of offers: • To purchase lease/license rights • To extend agreements • To alter terms Telecommunications Law
  • 100. Telecommunications Law
  • 101. Thank you Gail A. Karish gail.karish@bbklaw.com Best Best & Krieger LLP Ontario, CA Phone: (202) 785-0600 Telecommunications Law Matthew K. Schettenhelm matthew.schettenhelm@bbklaw.com Best Best & Krieger LLP Washington, DC Phone: (202) 785-0600