municipal management of cellphone towers, das and small...

Municipal Management of Cellphone

Towers, DAS and Small Cell DeploymentsRegulating Placement, Protecting Rights of Way, and Leasing Sites and Structures

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THURSDAY, NOVEMBER 15, 2018

Presenting a live 90-minute webinar with interactive Q&A

Gerard L. Lederer, Partner, Best Best & Krieger, Washington, D.C.

Gail A. Karish, Partner, Best Best & Krieger, Los Angeles

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2017 Best Best & Krieger LLP

Municipal Management of Cellphone Towers, DAS and Small Cell Deployments

Gerard Lavery Lederer

Best Best & Krieger LLP

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Acknowledgements and notes

• This may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome.

• BB&K presentations are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. It does not constitute legal advice, and no attorney-client relationship is formed by reading it. This alert may be forwarded or distributed to others in full (including but not limited to all logos, cautions and copyright notices) but may not be used otherwise without the permission of BB&K.

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Part I:

Local Regulation of Wireless Facilities

Part II:

Leasing Facilities to Wireless Providers

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What the Industry Looks Like• Entities that market wireless services to end users (Verizon

Wireless, T-Mobile, etc.) (traditionally using FCC-licensed frequencies). These entities may provide service and own wireless facilities

• Entities that build wireless facilities, lease facilities to service providers, and provide “backhaul” of signals (portion of facility may be owned by provider) (ExteNet, Crown Castle)

• Also in the market:• Entities that may provide backhaul via Wi-Fi (traditional cable providers)

• Entities that provide street lighting

9

Types of Facilities

• Macrocells• A high-powered antenna in a mobile phone network designed to

serve a large area from a single site. Macrocells often associated with monopoles, or guyed or lattice towers. Towers may be owned by one entity and shared by many providers

• Small Cells • Low-powered antennas (nodes) that have a range of 10 m. to 1 or

2 km. Nodes may or may not be connected by fiber. Small refers to area covered, not size of facility; typically don’t require tall structures. Small cells today typically serve one provider. Term includes a number of different devices – e.g. picocells, femtocells and microcells

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Types of Facilities (cont’d)

• Distributed Antenna Systems (DAS)• A network of spatially separated antennas (nodes) connected to a

common source (a hub) via a transport medium (often fiber optics) that provide wireless service within a specific geographic area or building. DAS systems can be owned by one entity and shared by a limited number of providers. Antennas do not need to be as high as traditional macrocells

• What makes up a wireless facility? May include:• Antenna, supporting structure, radio units, cooling equipment

(fans), cabling (electrical and communications), meter, back-up power supplies, electrical/communications systems interconnects; facilities aboveground/on pole/in vaults

• Different elements raise different legal/land use concerns

Why Wireless Presents New Local Challenges

• Industry says: delivering higher speed wireless data/video services requires “denser” networks –more antennas

• Translation: thousands more installations than are in place today

• Public property (including RoW) a major target for deployment.

• New FCC and state level small cells bills that provide great uncertainty of the rules of the game.

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12

More Demand May Translate To…

Small additions to existing utility poles…or

Requests for 120-foot towers in RoW…or

Light standard replacement/alteration

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Part I: Local Regulation of Wireless Facilities


“Pre-Summer”Federal Rules Impacting Local

Authority over Wireless/Wireline

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Federal Laws Impacting Local Authority Over Wireless/Wireline

47 U.S.C. § 253 (1996)• Preempts local rigs that prohibit or have effect of prohibiting ability of any

entity to provide telecommunications services

• But does not reach nondiscriminatory PROW management or compensation requirements

47 U.S.C. § 332(c)(7) (1996)• Generally preserves local authority to control placement of personal wireless

service facilities, subject to certain substantive and procedural limits (including action within reasonable period of time, no effective prohibition, denials in writing, and no consideration of RF emissions if meet FCC standards)

47 U.S.C. § 1455(a) [Sec. 6409] (2012) • Applies to all “wireless” applications

• Preempts local discretion over certain collocations and modifications to existing wireless sites; i.e., must approve

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FCC Wireless Rules and Orders

FCC Shot Clocks & Deemed Grant (2009, 2014)

• Sec. 332 (c)(7): 90 and 150 day shot clocks apply to local review of collocations and new sites whether macro or small cells/DAS in PROW.

• No federal deemed grant.

• Sec. 6409(a): “eligible facilities requests” 60 day shot clock and deemed granted remedy apply to local review; specific parameters for EFR affecting structures within and outside PROW.

• Federal deemed grant.


FCC’s Three Wireless Orders

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(“NEPA/NHPA Order”)

• In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79, Second Report and Order (Mar. 30, 2018)

• Holding: Deployment of small cells (28 cu. ft.) not a federal undertaking and therefore do not trigger federal obligation to examine historical/environmental impacts

• Generally: Small cell deployments will not impact historical sites

• Insight: State and local governments can protect historical and environmental interests

• Status: Order was appealed and in briefing today.

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Feds Move Out of Historic Preservation Business for Small Cells

• In March, 2018, the FCC amended its rules to clarify that “deployment of small wireless facilities by private parties does not constitute either a “federal undertaking” within the meaning of NHPA or a “major federal action” under NEPA….”

• Neither statute’s review process would be mandated for such deployments.

• Small wireless facilities deployments continue to be subject to applicable state and local government approvals.

• Order was appealed and is in briefing today.


FCC’s Moratoria Order

In the Matter of Accelerating Wireless Broadband Deployment By Removing Barriers to Infrastructure Investment, FCC 18-111, Third

Report and Order and Declaratory Ruling, WT Docket No. 17-79

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Moratoria Ban

• August 3: FCC releases In the Matter of Accelerating Wireless Broadband Deployment By Removing Barriers to Infrastructure Investment, FCC 18-111, Third Report and Order and Declaratory Ruling, WT Docket No. 17-79

• Holding: de jure moratoria and de facto moratoria on deployment generally “prohibit or effectively prohibit” provision of telecom services in violation of federal law, and are not saved from preemption as a form of RoW management

• Examples: freeze and frost laws, South Carolina hurricane path

• Insight: Effective immediately/not self-effectuating

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What the Order Does

• Bans “moratoria,” both express and de facto moratoria that effectively halt or suspend the acceptance, processing, or approval of applications or permits (¶134);

• Moratoria are generally[not protected by the exceptions Congress made available to states in Section 253(b) or local governments in Section 253(c) and perhaps 332(c)(7)(A) (¶¶134, 143-150); and

• Invites impacted carriers to file petitions under Section 253(d) with the FCC challenging specific alleged moratoria and directs the FCC staff to act promptly on such petitions.

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What is a Moratorium?

• Order captures express and de facto moratoria.

• Express moratoria are “…state or local statutes, regulations, or other written legal requirements that expressly, by their very terms, prevent or suspend the acceptance, processing, or approval of applications or permits necessary for deploying telecommunications services and/or facilities.” (¶135)

• De Facto moratoria are “…state or local actions that are not express moratoria, but that effectively halt or suspend the acceptance, processing, or approval of applications or permits for telecommunications services or facilities in a manner akin to an express moratorium.” (¶139)

• NOTE – “… not all street cut regulations are illegal moratoria.” • Street cut requirements which are designed to promote “dig-once” policies

“would not qualify as unlawful moratoria if the state or locality imposing such street-cut requirements does not bar alternative means of deployment such as aerial lines or sublicensing existing underground conduits” (¶142)

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Suggested Responses

• Moratoria Ruling was effective upon publication (Aug. 8)• Continue to pursue programs that protect the health and

safety of your constituents.• Prudent to look at the examples listed in order to see if

you might have a rule or ordinance that could be described as an express or de facto moratoria.

• If your community has an express moratorium, it might make sense to reevaluate it or otherwise make clear that it will not be enforced.

• The FCC ruling is not clear as to what constitutes a de facto moratoria, but if a provider claims your rules constitute such a moratoria, contact your counsel to learn how best to respond.


The FCC’s Small Cell Order – What It Says and How It Affects You

Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and

Third Report and Order, FCC WT Docket No. 17-79

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Major Elements of Order• Establishes “materially inhibit” as what Section 253 and 332

mean to prohibit or effectively prohibit. • Finds Congress did not include a blanket proprietary exception to

Section 253 (a) and therefore rents for government property in RoW must be “fair and reasonable.”

• Creates tests to see if local government action exceeds “materially inhibit” standard:

• Tests for when fees, aesthetics, undergrounding & spacing, “act in a timely manner,” and other requirements materially inhibit service.

• Creates 2 new shot clocks for “small cells” with “cost caps” for regulatory fees both inside and outside of rights-of-way; caps rent within RoW.

• “Enhanced” remedy for failing to meet shot clocks• Redefines “Collocate”

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What Is a Small Cell?(1) The facilities—

(i) are mounted on structures 50 feet or less in height including their antennas …, or

(ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or

(iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

(2) Each antenna associated with the deployment, excluding associated antenna equipment … is no more than three cubic feet in volume; (Note: no limit)

(3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume...

(4)… (5) … and

(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in section 1.1307(b).

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Redefinition of Effective Prohibition (Para 34-43)

• “[P]rior approaches erred by requiring coverage gaps…”• “Significant gap” (9th Cir.) and “least intrusive alternative” (2nd, 3rd

and 9th Cir.) appear abandoned – See n. 94

• A state or local legal requirement constitutes an effective prohibition if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” (Para. 35 quoting California Payphone.)

• “We clarify that an effective prohibition occurs where a state or local legal requirement materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service. This test is met not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities…also by materially inhibiting the introduction of new services or the improvement of existing services.” (Paragraph 37)

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According to FCC A Fee Is Permitted If…

(1) The fees are a reasonable approximation of the state or local government’s costs,

(2) Only objectively reasonable costs are factored into those fees, and

(3) Fees are no higher than the fees charged to similarly-situated competitors in similar situations.

(4) Presumptively reasonable:• Non-recurring fees =

• $500 for first 5/$100 for each additional• $1,000 for new pole

• Recurring fees = $270 per facility including RoW fee and fee for attachment to municipal infrastructure

(5) Specifically rejects claim that localities are exempt from 253(c)’s fair and reasonable standard in setting rates for RoW infrastructure (See paras. 92-97.)

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Existing Agreements (Para 66)

• “… [T]his Declaratory Ruling’s effect on any particular existing agreement will depend upon all the facts and circumstances of that specific case. Without examining the particular features of an agreement, including any exchanges of value that might not be reflected by looking at fee provisions alone, we cannot state that today’s decision does or does not impact any particular agreement entered into before this decision….”

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Aesthetics (para 84-89)

• Aesthetics requirements not preempted if: (1) reasonable,(2) no more burdensome than those applied to other

types of infrastructure deployments, and (3) objective and published in advance.

• “…aesthetic requirements that are reasonable in that they are technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments are also permissible.”

• Focuses on cost of aesthetics?

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Undergrounding (para 90)

• “…[You don’t have to]…go so far as requiring that all wireless facilities be deployed underground, [to] …be considered an effective prohibition of service.”

• Test: “same criteria of aesthetics generally…”(1) reasonable,

(2) no more burdensome than those applied to other types of infrastructure deployments, and

(3) objective and published in advance.

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Spacing Requirements (Par. 91)• “…a minimum spacing requirement that has the effect of

materially inhibiting wireless service would be considered an effective prohibition of service.” Para 87

• “Some parties complain of municipal requirements regarding the spacing of wireless installations… ostensibly to avoid excessive overhead “clutter” that would be visible from public areas. We acknowledge that while some such requirements may violate 253(a), others may be reasonable aesthetic requirements.” Para. 91

• “For example, under the principle that any such requirements be reasonable and publicly available in advance, it is difficult to envision any circumstances in which a municipality could reasonably promulgate a new minimum spacing requirement that, in effect, prevents a provider from replacing its preexisting facilities or collocating new equipment on a structure already in use.” Para. 91

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Shot Clocks• Apply to all permits required for deployment, not just wireless

permits

• Pre Application Meetings• “We conclude that if an applicant proffers an application, but

a…locality refuses to accept it until a pre-application review has been completed, the shot clock begins to run when the application is proffered…” Para 145

• Locality must accept “batched” applications and time frame is same for one as for many. Para 114, 115

• “…[I]n extraordinary cases, a siting authority …can rebut the presumption of reasonableness of the applicable shot clock period where a batch application causes legitimate overload on the siting authority’s resources.” Para. 115

• Failure to meet shot clocks deemed an “effective prohibition”

• NO DEEMED GRANTED.

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Small Cell Shot Clock Reset• Siting authority must:

• Notify the applicant on or before the 10th day after submission that the application is materially incomplete.

• Clearly and specifically identify the missing documents or information and the specific rule or regulation creating the obligation to submit such documents or information,

• Shot clock date calculation “shall restart at zero on the date on which the applicant submits all the documents and information required…”

• But…operators will argue shot clock starts on resubmission. Additional incompleteness notice is required if resubmission is inadequate

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Collocation

• Two meanings:• Non 6409 context – there is a structure

present, but not a wireless device. This provides 60 day shot clock for small cell and 90 day shot clock for all others

• 6409 Context – there is a structure and the structure has a permitted wireless device.

Putting Time Frames Together…New Concept of Collocation

10 Day Review of Amended Applications

10 Days 30 Days 60 Days 90 Days 150 Days

IncompleteSmall Cell with Reset

Incomplete for Non-Small Cell

Small CellOn Existing Structure

Small CellOn New Structure //Any Cell on ExistingStructure

New Cell on New Structure

6409 Co-location

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Time Periods – What’s Next?• Effective Date

• 90 days following publication in Federal Register. • January 13, 2019

• Consolidated forms and Aesthetic Standards.

• Appeal• Heard by U.S. Ct. of Appeals (not trial court) –• Time to file an appeal runs from date summary published in the

Federal Register.* • 10 days for lottery; • 60 days for non-lottery

• Reconsideration – 30 days after summary published (Please ask NATOA before filing.)

• Order is not automatically stayed on appeal

* Thanks to Commissioner Carr for uniform appeal date.

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Section 332(c)(7)• Applies to “Personal Wireless Service [PWS] Facilities”

• Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services

• Preserves local zoning authority, with five limitations. Meaning may vary between circuits but locality:

• Shall not “unreasonably discriminate” among providers of functionally equivalent services – 332(c)(7)(B)(i)(I)

• Prohibit or effectively prohibit provision of PWS – 332(c)(7)(B)(i)(II)

• Must act on request within “reasonable period of time” – 332(c)(7)(B)(ii)

• Must make final decision to deny “in writing” and supported by “substantial evidence” in written record – 332(c)(7)(B)(iii);

• May not deny based on RF regulation if facility satisfies FCC rules –332(c)(7)(B)(iv)

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Prohibition/Effective Prohibition• Policy of Denial of All Applications

• A clear policy of banning all wireless facilities = prohibition.

• Circuits Split on When Denial of Single Permit = Effective Prohibition:

• 4th Circuit: T-Mobile Northeast LLC v. Fairfax County Bd. of Supervisors 672 F.3d 259 (4th Cir. 2012) Applicant must show denial “tantamount” to general denial:

• a legally cognizable deficit in coverage amounting to an effective absence of coverage; and

• it lacks reasonable alternative sites to provide coverage; and

• further reasonable efforts to gain approval for alternative facilities would be “fruitless.”

• 9th Circuit: T-Mobile v. Anacortes, 572 F.3d 987 (9th Cir. 2009); MetroPCS Inc. v. San Francisco, 400 F.3d 715 (9th Cir. 2005).

• Applicant must show a significant gap in its own service exists; and it proposed the least intrusive means to mitigate that gap

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What’s a “Written Decision”?

• The Telecom Act “does not require localities to provide [its] reasons in written denial letters . . . [so long as the locality] states its reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial.”

• T-Mobile South LLC v. Roswell, 135 S.Ct. 808, 818 (2015)

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What’s “Substantial Evidence”?

• Substantial evidence test similar to judicial review of administrative actions

• “The substantial evidence inquiry is deferential: [we] may not overturn the [City’s] decision on ‘substantial evidence’ grounds if that decision is authorized by applicable local regulations and [is] supported by a reasonable amount of evidence (i.e., more than a ‘scintilla’ but not necessarily a preponderance).”

• Am. Tower Corp. v. San Diego, 763 F.3d 1035, 1053 (9th Cir. 2014)

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Action within a Reasonable Time

• Statutory requirement• Locality shall act “on any request for authorization to

place, construct, or modify” facilities “within a reasonable period of time after the request is duly filed” considering “nature and scope of such request” 47 USC §332(c)(7)(B)(ii)

• FCC says, absent agreement with applicant, 332(c)(7) presumed violated if locality fails to act:

• On collocation application not subject to Section 6409 (47 U.S.C. § 1455) = 90 days

• On new sites = 150 days

• Applicant must file suit within 30 days of action or local failure to act, or lose rights

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Meeting Deadlines• General “shot clock” rules

• Commences at submittal (even for incomplete apps)• Shot clock may toll (pause) but never resets• Clock ends when local government “acts” on application

• Complex rules for incomplete applications• General rule: LGs may generally toll the clock with a written incomplete

notice given within the first 30 days• 10-day resubmittal rule: application deemed complete if LG fails to deem it

incomplete w/in 10 days after response to inc. notice• Publicly-stated rule: incomplete notice not effective when it asks for

information not publicly stated as a requirement • One-bite rule: incomplete notices not effective if asks for information not

requested in first notice

• Shot clock can always be tolled/extended by mutual agreement with applicant

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Section 6409 – 47 U.S.C. § 1455(a) Facility modifications

(1) In generalNotwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) 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.

(2) Eligible facilities requestFor purposes of this subsection, the term “eligible facilities request” means 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.

(3) Applicability of environmental lawsNothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act [1] or the National Environmental Policy Act of 1969.

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FCC Rules 47 CFR § 1.40001

• Almost all terms in Sec. 6409 are undefined

• FCC order adopting rule is critical to understanding requirements: In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, 29 FCC Rcd. 12865 (Oct. 17, 2014), amended by 30 FCC Rcd. 31 (Jan. 5, 2015).

• Upheld by 4th Circuit, Montgomery County v. FCC 811 F.3d 121 (2015)

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Procedural Requirements• Applies only to “eligible facilities requests”

• Applicant is only required to submit information required by state or local law, and relevant to determining (a) if change is eligible facilities request; or (b) change complies with general public safety laws

• Absent applicant agreement, state/local governments must act within 60 days of receipt of an application

• Rules for application completeness, notice, and tolling the same as for Section 332(c)(7)

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Definitions

• Tower: structure built for sole or primary purpose of supporting FCC licensed or authorized antennas and associated facilities – NOT a utility pole

• Base Station• Equipment associated with wireless comm. service• Antennas, coax, backup power supplies• “any structure other than a tower” that at time of application was

supporting or housing the above• Existing: A constructed tower or base station that has been

“reviewed and approved under the applicable zoning or siting process or under another State or local” process, except towers not in a zoned area when built, but lawfully constructed (non-conforming uses?)

• Modification = not a replacement

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Substantial Changes –ThresholdsCriteria Towers Outside of

RoWOther Support

Structures & ROW

Height 20 feet or ten percent 10 feet or 10 percent

Width 20 feet or tower width 6 feet

Equipment Cabinets

4 maximumNone if no ground

cabinets; otherwise same, plus volumetric limits

Excavationwithin the leased or

owned area

same, but further restricted to proximity to other ground equipment

Concealment cannot “defeat” the concealment elements

Compliance with Prior Permit Conditions

changes must comply with all prior conditions except where only non-compliance meets FCC thresholds

on height, width, cabinets or excavation

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What’s a Concealment Element?

• FCC suggested height limits designed to prevent an otherwise undisguised tower from extended above a tree canopy might be a “concealment” element

• Painting requirements, requirements that limit visibility of structures may be concealment elements (e.g. rooftop height limits)

• Stealth facilities would have “concealment elements.”

• What about other design requirements intended to make a wireless facility blend into surroundings? E.g., proportions of antenna; size of antenna relative to supporting structure

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Other Important Notes

• Except for Concealment Elements, Rules May Effectively Preempt

• Local zone height limits

• Restrictions on legal non-conforming uses that make all alterations to those facilities subject to local discretion

• Height Limits Apply From Size of Facility As Initially Approved, Or As Increased Prior to February 22, 2012

• No cumulative limit on other criteria

• General Health and Safety Laws Not Preempted• Building codes

• Some setbacks (but what about fall zones? AASHTO Guidelines?)

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Remedies

• Deemed-Granted Permits• If 332(c)(7) deadlines missed, locality may show that

delay was justified.

• Under Section 6409, if deadline passes applicant may notify community that application is “deemed granted”

• Judicial Review• Flips normal process upside down: local government

must sue applicant to prevent “deemed granted” permit from becoming effective

• FCC suggests review limited to whether facility was eligible facilities request or unsafe

Putting Time Frames Together…New Concept of Collocation

10 Day Review of Amended Applications

10 Days 30 Days 60 Days 90 Days 150 Days

IncompleteSmall Cell with Reset

Incomplete for Non-Small Cell

Small CellOn Existing Structure

Small CellOn New Structure //Any Cell on ExistingStructure

New Cell on New Structure

6409 Co-location

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Part II:

Leasing Facilities to Wireless Providers

• Caveat: Different Rules and Terms for ROW deployments and off the right of way deployments.

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Special Issues – Poles/Lights in RoW Used/Owned by Locality

• Some companies asking localities/elec utilities to sell facilities to them – this may create significant risks, and effectively result in lost control of lighting and signaling systems

• You need to be sure that alterations do not make it more expensive to operate/maintain facilities – or to restore in event of emergency (are there spare available light poles?)

• Will lease prevent replacement of light poles? Additions of new monitors/structures for muni use? Expansion/redesign of RoW?

• Is term realistic? Will it create new liabilities?

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Control the Drafting Process

• Try to avoid using anyone else’s standard form

• WHY?• Wireless carriers’ standard forms are one-sided.

• Substantial legal fees in editing.

• Wireless carriers can, will, and maybe should take advantage naïve property owners

• Developing and using a standard form saves time and helps avoid overlooking issues

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Premises & Grant of Authority

• Include an exhibit with legal descriptions, drawings, and/or photos

• The more detail you have, the easier it is to police the agreement, especially regarding unauthorized collocations and subleases

• Address use of common areas and access points

• Control signage, conduct, and look

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License/Lease Not Easement

• Granting an easement may be granting others access to same property

• License is all the legal authority a wireless carrier needs

• Lease structure is also an acceptable alternative (but grants exclusive use, not shared use)

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Term

• For general leases, define term and renewal options

• For wireless sites, typically series of 5 year terms – 20 to 30 years total

• Strategic decision re: auto renewals or affirmative notice required• If notice is required, keep a database of renewal

dates

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Term (cont’d)

• Beware of “options to lease” or long “due diligence” periods tying up sites with no guarantee of rent

• Avoid long delivery or construction periods for permitting with no rent – begin term immediately and add construction period to overall term

• 30-60 days or commencement of construction, whichever comes first

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Due Diligence Period

• Limited time in which wireless carrier has to obtain legal clearances and ensure that site works for them

• Try Not to give this time away for free

• Require indemnity and insurance for any activities on site by licensee/consultants and require prior consent for any borings: require copies of any consultant reports be provided to you

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Rent/License Fee

• Inside or Out of RoW

• Basic fee//Collocation fees (or address this later)

• Late Fees, Interest and Hold-Over fees• Late fees are what you can get• Interest limited by law (be sure to include

savings clause to avoid usury claim)• Hold-over rent should be in the range of 125%

to 150% of then-current rent

63

Wireless Site Base Rent*

Rent (off right of way): $1.8k per month to $5K + per month, paid on annual basis in advance

• Offer a direct deposit option• Carriers typically offer low escalators – e.g., 15%

every 5 years• Consider CPI with a floor of 3.5% and ceiling of 5%

Rent (within RoW) –• Look to state law or FCC’s reasonable

approximation of costs ($270.00)* You may need to provide at regulated right, but seek to have all parties acknowledge market rate.

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Assignment

• Require landlord approval• Wireless carriers usually want to be able to shift

sites to related corporate entities without landlord approval.

• Beware of assignments to “affiliates,” tower operating companies.

• No release of original entity for certain clauses – hazardous and insurance issues

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Assignment or Subletting

• No sublicensing without permission• Have licensee waive rights

• Check state laws e.g.: Cal Civil Code §§ 1995.260, 1995.270

• §6409 (47 U.S.C. § 1455) regarding collocations does not affect contractual restrictions

• Landlord should retain ability to consent to any proposed sublicense that involves the collocation of another carrier’s facilities

• Additional rent for subs

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Interference

• Ensure that you do not cause any challenges for any existing tenants

• Ensure that subsequent tenants/collocators do not cause interference [Note: you may have greater rights to address interference on your property than elsewhere]

• Burden is on newcomers to cure interference caused by their arrival (not existing users)

• Be sure licensor/landlord is not responsible for interference or cure

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Improvements

• Detailed plans with prior approval• Do not agree to “approval not to be unreasonably

withheld, delayed or conditioned …”• Control appearance of improvements

• All work by licensee shall be performed in compliance with applicable laws, codes/standards and ordinances

• Licensee is not authorized to contract for or on behalf of licensor or impose any additional expense. (i.e. utilities)

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Improvements & Utilities

• Be sure improvements will be maintained and upgraded to comply with laws, but any new installations must not be heavier, greater in capacity or more space than originally granted

• Licensee pays for utilities; licensor/landlord not responsible for any interruptions

• Do not agree to allowing licensee to use your electric connection with a submeter

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Removal of Improvements

• Think about how to handle this – may depend on facility type

• Immediate ownership (e.g., of light pole)• Automatic conveyance of ownership to

licensor• Option for licensor to retain improvements

or require removal• Require removal of footings and

foundations

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Technical Standards

• Possible requirement:• Licensee agrees to comply with all applicable governmental

laws and regulations and with such technical standards as may from time to time be established by licensor for the premises, including, without limitation, technical standards relating to frequency compatibility, radio interference protection, antenna type and location, and physical installation

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Limit Access (Think Post-9/11)

•24 hour notice generally •Escort

• But be careful about costs of escort service.

•Emergency conditions for access

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Access Rights/Security

• If installation on roof:• Limit access to certain specific areas

• Require your roof contractor to approve; avoid roof penetrations which may invalidate roof warranties

• Limit cabling access to common shafts

• Limit size, weight and frequency of access to roof

• If installation across private or limited access land, limit access and protect fencing, private or municipal property or animals

• Put burden to maintain secure fencing on licensee

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Events of Default / Termination by Licensor

• Non-payment by tenant

• Habitual late payments from tenant

• Violation of any term, including non-permitted collocations

• Bankruptcy of tenant

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Termination by Licensee

• Carefully define when licensee can terminate

• Wireless carriers want ability to terminate for “technological, economic, or environmental” reasons PLEASE DON’T ACCEPT

• Either prohibit terminations or require payment (e.g., rent for remainder of term or 12-24 months of rent)

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Casualty/Insurance/Indemnity

• Make sure to run by your risk assessment folks

• Typical insurance is general liability, auto liability, employer’s liability, all-risk property, and workers’ comp.

• Make sure insurance requirements apply to contractors and subs

• Don’t accept reciprocal indemnity• Caveat: Many states and local government charters ban

reciprocal indemnity

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Taxes

• Make sure it is clear that taxes due are in addition to rent

• Address possessory interest tax (Revenue and Taxation Code 107.6) liability for licensee

• General Rule that local government wants to make clear that it is acting as a landlord, not as regulatory (taxes, permits etc.)

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Notices

• All notices, requests, demands and other communications to be in writing and delivered to specified addresses

• Be sure to have multiple entities in government copied

• Counsel

• Public Works Director

• City clerk

• City Engineer

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Quiet Enjoyment, Title and Authority

• Traditional obligations of the landlord

• Make sure you have authority – i.e. make sure such use is permitted under your governing documents

• Ensure that you have not granted another the right to deploy in a manner that could result in interference

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Hazardous Substances

• Strict language to prohibit any such uses

• Batteries for back up and generators can trigger these terms

• Check with your environmental folks for most recent terms – pay special attention that these substances do not prejudice your ability to reuse the site or co-use. (Typically local government sites are water towers, or gov’t buildings – but note particular hazards created by placement in RoW)

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Miscellaneous

• Attorney fees

• Entire agreement

• No liability for broker/agent fees

• Governing law and venue

• Severability

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Miscellaneous (cont’d)

• Mortgage subordination

• Limitation on liability

• RF signage and notices

• Amendments

• No relocation assistance

• Time IS OF THE ESSENCE

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Selling Your Wireless Leases

• Numerous tower operators seeking to buy landlord lease rights

• Typically offer only a fraction of NPV of lease payments

• Will emphasize threat of nonrenewal, certainty of being paid

• May ask for amendments allowing unlimited collocations

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Gail A. [email protected] Best Best & Krieger300 South Grand Avenue 25th Floor Los Angeles, CA 90071Phone: (213) 617-7491Fax: (909) 944-1441Website: www.bbklaw.com

Contact Information

Gerard Lavery [email protected] Best & Krieger 2000 Pennsylvania Avenue N.W. Suite 5300Washington DC 20006 Phone: (202) 785-0600 Fax: (202) 785-1234 Cell: (202) 664-4621Website: www.bbklaw.com

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municipal management of cellphone towers, das and small...

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