Telecommunications Law
Cellular Antennas on
Special District Property:
The Opportunity and the Risk
Gail A. Karish
Matthew K. Schettenhelm
Best B...
Do you have any obligation to license
your property to cell-phone companies?

Telecommunications Law
No.

Telecommunications Law
(Or, you shouldn’t.*)
*FCC rulemaking?

Telecommunications Law
Do you “regulate” cell tower
placements?

Telecommunications Law
No.

Telecommunications Law
You are a property owner.

Telecommunications Law
It is the company’s obligation to ensure
that it has all regulatory approvals.

Telecommunications Law
This talk will have two parts.

Telecommunications Law
(1) regulatory framework

Telecommunications Law
(2) how you protect yourself as a
property owner

Telecommunications Law
What regulations apply here?

Telecommunications Law
Typically, local zoning approval

Telecommunications Law
(May be easier to get zoning approval
on special-district property than
elsewhere)

Telecommunications Law
47 U.S.C. § 332(c)(7)

Telecommunications Law
Generally preserves local zoning
authority, subject to five limitations

Telecommunications Law
1. A State or local government may not
“prohibit” the provision of service.

Telecommunications Law
2. It may not unreasonably discriminate
among providers.

Telecommunications Law
3. Any decision to deny must be in
writing and supported by “substantial
evidence.”

Telecommunications Law
4. A local government must act within a
“reasonable period of time” in light of
the nature of the application.

Telecommun...
The FCC reasonably imposed
90 and 150-day “shot-clocks”

Telecommunications Law
The Supreme Court upheld the FCC

Telecommunications Law
City of Arlington v. FCC,
No. 11-1545

Telecommunications Law
5. The local government must not
regulate based on the effects of
radiofrequency emissions

Telecommunications Law
47 U.S.C. § 1455

Telecommunications Law
A State or local government “may not
deny, and shall approve, any eligible
facilities request” for a modification of
an ex...
“Eligible facilities request” is any
request to modify an existing tower or
base station that involves:
“(A) collocation o...
Congress left all the other key terms
undefined

Telecommunications Law
&

Telecommunications Law
Didn’t clarify if it intended to reach
proprietary, or only regulatory, action

Telecommunications Law
In January, FCC issued non-binding
“guidance”

Telecommunications Law
• Defines “substantially change” through
criteria developed in a different context
(historic preservation).
• no “substant...
 Defines “substantially change” through criteria
developed in a different context (historic
preservation).
• For example,...
Historic Site – Post Guidance?
Illustration showing potential impact of co-location of an additional approximately 20’-hig...
Stealth Site –
Now
100’ monopole disguised as a flagpole constructed to
conceal six panel antennas within its exterior. Lo...
Stealth
Site – Post
Guidance?
Illustration shows the potential impact of an
approximately 20’- high extension to support a...
Rooftop Stealth Site – Now
Two-story office building located on Layhill Road at Bonifant Road in Montgomery County with an...
Rooftop Stealth Site – Post Guidance?
Illustration of a tower-like structure constructed to support co-location antennas a...
We expect the FCC to launch a
rulemaking, perhaps within the month

Telecommunications Law
Educating the FCC could be important

Telecommunications Law
Part II:
How should you structure the deal?

Telecommunications Law
10 points
1. Control the drafting process
2. Establish the structure (lease/license)
3. Define what you are granting
4. Es...
(1) Control the drafting process

Telecommunications Law
Company’s form agreements likely will
be highly slanted in their favor

Telecommunications Law
Consider developing your own

Telecommunications Law
(2) What are you granting the company?

Telecommunications Law
Usually ok to structure
as a license or a lease

Telecommunications Law
(3) What access are you granting?

Telecommunications Law
Define specifically what facilities may
be placed, and where

Telecommunications Law
Do not freely allow “improvements”:
require specific plans, subject to your
approval.

Telecommunications Law
Avoid: “approval will not be
unreasonably withheld, delayed, or
conditioned”

Telecommunications Law
If you allow replacement of existing
facilities, clarify that new equipment
cannot differ in size, impact, aesthetics,
etc...
Address how the company may access
its facilities – and when it will do so . . .

Telecommunications Law
May the provider use common areas?
Must it obtain supervised access?
Must it provide advanced notice?
May it use your acce...
Address how the provider will obtain
and use electricity at the site

Telecommunications Law
If you have aesthetic concerns,
address them directly

Telecommunications Law
(4) What is the term?

Telecommunications Law
Typically structured as consecutive
series of 5-year terms,
spanning 20 or 30 years total

Telecommunications Law
Avoid “options to lease” particular sites,
which may prevent you from recovering
full fees for a particular location

Tele...
Avoid long delivery or construction
periods pre-payment; begin payments
immediately

Telecommunications Law
If provider requests a “due diligence”
period, don’t give this time away for
free – and ensure that provider
indemnifies y...
(5) What should you charge in rent?

Telecommunications Law
Two elements:

Telecommunications Law
(1) Base rent

Telecommunications Law
(2) Collocation fees

Telecommunications Law
Base rent for tower typically between
$2,000 - $5,000/month

Telecommunications Law
Companies often offer low annual
escalators

Telecommunications Law
Can collect collocation fees from initial
licensee or directly from later
subtenants

Telecommunications Law
Address late fees (interest)
and hold-over fees
(100%-200% of then-current rent)

Telecommunications Law
(6) Subletting and Assignment

Telecommunications Law
Do not permit subletting/collocation
without your permission

Telecommunications Law
• Have licensee waive rights under Civil
Code §§ 1995.260, 1995.270
• 47 U.S.C. § 1455 should not affect
contractual restr...
(7) Interference

Telecommunications Law
Ensure that tenant cannot interfere with
your operations – or those of any
existing tenants.

Telecommunications Law
Burden should be on newcomers

Telecommunications Law
Be sure that it is not on you

Telecommunications Law
(8) Removal

Telecommunications Law
May depend on type of facility

Telecommunications Law
In some cases, you might assume
ownership.

Telecommunications Law
In others, licensee should
bear the duty to remove, at its cost.

Telecommunications Law
(9) Termination

Telecommunications Law
Establish events of default justifying
termination:

Telecommunications Law
Non-payment

Telecommunications Law
Habitual late payment

Telecommunications Law
Violation of any term, if not cured

Telecommunications Law
Bankruptcy

Telecommunications Law
Carefully define when the provider can
terminate

Telecommunications Law
Either prohibit volitional terminations or
requirement payment
(e.g. rent for remainder of term or 1224 months of rent)

T...
(10) Standard terms

Telecommunications Law
Insurance: check with risk-assessment
Typical: general liability, auto liability,
employer’s liability, all-risk property,...
Hazardous substances:
strictly prohibit

Telecommunications Law
Require indemnification

Telecommunications Law
No relocation assistance

Telecommunications Law
What to do after you contract?

Telecommunications Law
Monitor compliance, and . . .

Telecommunications Law
. . . after you have a great deal . . .

Telecommunications Law
don’t change it.

Telecommunications Law
Be wary of offers:
• To purchase lease/license rights
• To extend agreements
• To alter terms

Telecommunications Law
Telecommunications Law
Thank you
Gail A. Karish
gail.karish@bbklaw.com
Best Best & Krieger LLP
Ontario, CA
Phone: (202) 785-0600

Telecommunicati...
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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

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

  1. 1. Telecommunications Law
  2. 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. 3. Do you have any obligation to license your property to cell-phone companies? Telecommunications Law
  4. 4. No. Telecommunications Law
  5. 5. (Or, you shouldn’t.*) *FCC rulemaking? Telecommunications Law
  6. 6. Do you “regulate” cell tower placements? Telecommunications Law
  7. 7. No. Telecommunications Law
  8. 8. You are a property owner. Telecommunications Law
  9. 9. It is the company’s obligation to ensure that it has all regulatory approvals. Telecommunications Law
  10. 10. This talk will have two parts. Telecommunications Law
  11. 11. (1) regulatory framework Telecommunications Law
  12. 12. (2) how you protect yourself as a property owner Telecommunications Law
  13. 13. What regulations apply here? Telecommunications Law
  14. 14. Typically, local zoning approval Telecommunications Law
  15. 15. (May be easier to get zoning approval on special-district property than elsewhere) Telecommunications Law
  16. 16. 47 U.S.C. § 332(c)(7) Telecommunications Law
  17. 17. Generally preserves local zoning authority, subject to five limitations Telecommunications Law
  18. 18. 1. A State or local government may not “prohibit” the provision of service. Telecommunications Law
  19. 19. 2. It may not unreasonably discriminate among providers. Telecommunications Law
  20. 20. 3. Any decision to deny must be in writing and supported by “substantial evidence.” Telecommunications Law
  21. 21. 4. A local government must act within a “reasonable period of time” in light of the nature of the application. Telecommunications Law
  22. 22. The FCC reasonably imposed 90 and 150-day “shot-clocks” Telecommunications Law
  23. 23. The Supreme Court upheld the FCC Telecommunications Law
  24. 24. City of Arlington v. FCC, No. 11-1545 Telecommunications Law
  25. 25. 5. The local government must not regulate based on the effects of radiofrequency emissions Telecommunications Law
  26. 26. 47 U.S.C. § 1455 Telecommunications Law
  27. 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. 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. 29. Congress left all the other key terms undefined Telecommunications Law
  30. 30. & Telecommunications Law
  31. 31. Didn’t clarify if it intended to reach proprietary, or only regulatory, action Telecommunications Law
  32. 32. In January, FCC issued non-binding “guidance” Telecommunications Law
  33. 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. 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. 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. 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. 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. 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. 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. 40. We expect the FCC to launch a rulemaking, perhaps within the month Telecommunications Law
  41. 41. Educating the FCC could be important Telecommunications Law
  42. 42. Part II: How should you structure the deal? Telecommunications Law
  43. 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. 44. (1) Control the drafting process Telecommunications Law
  45. 45. Company’s form agreements likely will be highly slanted in their favor Telecommunications Law
  46. 46. Consider developing your own Telecommunications Law
  47. 47. (2) What are you granting the company? Telecommunications Law
  48. 48. Usually ok to structure as a license or a lease Telecommunications Law
  49. 49. (3) What access are you granting? Telecommunications Law
  50. 50. Define specifically what facilities may be placed, and where Telecommunications Law
  51. 51. Do not freely allow “improvements”: require specific plans, subject to your approval. Telecommunications Law
  52. 52. Avoid: “approval will not be unreasonably withheld, delayed, or conditioned” Telecommunications Law
  53. 53. If you allow replacement of existing facilities, clarify that new equipment cannot differ in size, impact, aesthetics, etc. Telecommunications Law
  54. 54. Address how the company may access its facilities – and when it will do so . . . Telecommunications Law
  55. 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. 56. Address how the provider will obtain and use electricity at the site Telecommunications Law
  57. 57. If you have aesthetic concerns, address them directly Telecommunications Law
  58. 58. (4) What is the term? Telecommunications Law
  59. 59. Typically structured as consecutive series of 5-year terms, spanning 20 or 30 years total Telecommunications Law
  60. 60. Avoid “options to lease” particular sites, which may prevent you from recovering full fees for a particular location Telecommunications Law
  61. 61. Avoid long delivery or construction periods pre-payment; begin payments immediately Telecommunications Law
  62. 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. 63. (5) What should you charge in rent? Telecommunications Law
  64. 64. Two elements: Telecommunications Law
  65. 65. (1) Base rent Telecommunications Law
  66. 66. (2) Collocation fees Telecommunications Law
  67. 67. Base rent for tower typically between $2,000 - $5,000/month Telecommunications Law
  68. 68. Companies often offer low annual escalators Telecommunications Law
  69. 69. Can collect collocation fees from initial licensee or directly from later subtenants Telecommunications Law
  70. 70. Address late fees (interest) and hold-over fees (100%-200% of then-current rent) Telecommunications Law
  71. 71. (6) Subletting and Assignment Telecommunications Law
  72. 72. Do not permit subletting/collocation without your permission Telecommunications Law
  73. 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. 74. (7) Interference Telecommunications Law
  75. 75. Ensure that tenant cannot interfere with your operations – or those of any existing tenants. Telecommunications Law
  76. 76. Burden should be on newcomers Telecommunications Law
  77. 77. Be sure that it is not on you Telecommunications Law
  78. 78. (8) Removal Telecommunications Law
  79. 79. May depend on type of facility Telecommunications Law
  80. 80. In some cases, you might assume ownership. Telecommunications Law
  81. 81. In others, licensee should bear the duty to remove, at its cost. Telecommunications Law
  82. 82. (9) Termination Telecommunications Law
  83. 83. Establish events of default justifying termination: Telecommunications Law
  84. 84. Non-payment Telecommunications Law
  85. 85. Habitual late payment Telecommunications Law
  86. 86. Violation of any term, if not cured Telecommunications Law
  87. 87. Bankruptcy Telecommunications Law
  88. 88. Carefully define when the provider can terminate Telecommunications Law
  89. 89. Either prohibit volitional terminations or requirement payment (e.g. rent for remainder of term or 1224 months of rent) Telecommunications Law
  90. 90. (10) Standard terms Telecommunications Law
  91. 91. Insurance: check with risk-assessment Typical: general liability, auto liability, employer’s liability, all-risk property, and workers’ compensation Telecommunications Law
  92. 92. Hazardous substances: strictly prohibit Telecommunications Law
  93. 93. Require indemnification Telecommunications Law
  94. 94. No relocation assistance Telecommunications Law
  95. 95. What to do after you contract? Telecommunications Law
  96. 96. Monitor compliance, and . . . Telecommunications Law
  97. 97. . . . after you have a great deal . . . Telecommunications Law
  98. 98. don’t change it. Telecommunications Law
  99. 99. Be wary of offers: • To purchase lease/license rights • To extend agreements • To alter terms Telecommunications Law
  100. 100. Telecommunications Law
  101. 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

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