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Wireless Carrier Attempts Backdoor Land Grab

Our law firm recently dealt with an interesting issue: an attempted unpaid land grab by a carrier.  This is an issue that wireless site landlords should ALWAYS be on the lookout for when reviewing the plans for a proposed site modification.  This story deals with a proposed standby power generator.

In the matter we just resolved for our landlord client, the wireless carrier wanted to install a new propane gas powered standby power generator at its cell site on our client’s property.

Standby power generators provide electrical power during commercial power outages, thereby allowing the cell site to operate during a local power outage.

For the most part, that’s a good thing.

The carrier proposed that the 7,500 watt standby power generator; the 120 gallon propane tank; the power transfer switch, etc. all to be placed entirely within the existing leasehold area.

That’s a good thing, too.

When we reviewed the project plans for the landlord, we recommended the landlord DENY the request.  The landlord was surprised.  All of the proposed modifications were to be entirely within the leasehold area, so on what basis wound he deny the request, he wanted to know.

Well, it turns out that the carrier’s request to modify its site—entirely within its leasehold area, was an attempt to secure a defacto, covert unpaid expansion of the land on the landlord’s property to be controlled by the carrier.

And that’s not a good thing.

What the carrier outright failed to tell the landlord (and only provided a single oblique reference on one panel on a single page of the 11 pages of zoning plans) was that the location of the propane tank triggered a fire safety code ignition clearance zone of 5 feet in all directions around the tank.

To maintain the ignition clearance from all of the existing wireless equipment inside the leasehold, the carrier proposed to place the propane tank against the edge of the leasehold.  That meant that the 5 foot clearance zone around the tank would actually extend outside of the leasehold area, thereby restricting and controlling the landlord’s use of his own property.

Figure 1, below, contains a capture of the relevant portion of the plans as proposed by the carrier:

.

In the next graphic, Figure 2, I’ve animated the plans in Figure 1 to show exactly where the land grab would have occurred had we not detected it:

(Click on the image above to see it in full size and animation.)

Did the carrier, on its own, actually disclose these the relevant facts to the landlord other than via an oblique plan page reference? No.

Did the carrier, on its own, offer any additional rent to the landlord? No.

In the end, did the landlord, once alerted by us the unpleasant reality, agree to permit the defacto unpaid expansion? No.

Having being caught by us, the carrier redesigned the site to comply with the fire safety codes without trying to sneak in an unpaid leasehold expansion.

That’s a good thing, too.

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Mayor Sam Liccardo Resigns from FCCs Sham BDAC

Today, San José Mayor Sam Liccardo resigned from the FCC’s Broadband Deployment Advisory Committee (“BDAC”). This comes as no surprise to most of us in the local government sector, yet we’re sorry to see him leave.

When FCC Chairman Ajit Pai announced just one year ago his intention to form the BDAC as a vehicle for local governments and the wireless industry to work together to draft proposals for balanced local wireless deployment policies, we knew that the membership of the BDAC (hand selected by the Chairman) would tell the tale.

Unfortunately, the tale told by the Chairman’s lopsided selection for BDAC membership showed an industry-captured agency where the real intent was to top-load the Committee with industry players, while assigning a paltry-few membership slots to local government representatives.  More: See this link.

Mayor Liccardo took on one of the micro-minority slots doled out by the Chairman to local government representatives and he really attempted to make something of it.  For that, we applaud Mayor Liccardo, and hope the side of his head is not too dented.

Read his resignation letter, below.  You’ll get why we know that work product of the BDAC is most likely (say only 99.999999999999% likely) to be a sham…and a means and justification for the Commission to adopt new rules based on the sham work product of the captured agency.

jlk

 

FCC BDAC Resignation Letter of Mayor Sam Liccardo (San José, California). January 25, 2018.

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New Mobilitie Design: The ‘Fanny Pack’

Mobilitie, the purveyor for Sprint of such new but instant classic wireless designs as:

The “Speargun” Design * (see below)

and

The “Pox on a Pole” Design (this is the Walrus version) *

and

The “Stick it Up Your Pole” Design * # (see below)

…has (finally) come up with a fairly-decent site configuration.  I call the new design the “Fanny Pack.”  Here’s what it looks like, as recently deployed in the City of Los Angeles:

The “Fanny Pack” Design *

The RRU, UE (backhaul) Relay, the power distribution, and elements other than the downlink antenna are all located within the Fanny Pack.

I see the Fanny Pack design as Mobilitie’s best efforts to date to come with and deploy a closer-to-mainline wireless site that is far less awful that its prior outdoors site configurations.  There are some site deployment issues with the Fanny Pack design, but those issues are relatively easy to address.

We’ve seen plans for the same basic Fanny Pack design, but with the equipment enclosure on the back of the pole.  Needless to say, we’ll refer to that as the “Back Pack” when deployed.  Photos to follow after the first Back Pack goes up near us.

Keep up this better work, Mobilitie!

Jonathan

* Okay, as you should have guessed by now, these are my design names, not Mobilitie’s. Got it? Good!

# Ms. Shannon Nichols, a NCE Permitting Manager for Mobilitie in Southern California told me on 12/6/2017 that the wood pole configuration shown above, with its standoff bracket and equipment, was a design requirement of the City of Los Angeles.  She went on to say that Mobilitie would have preferred to have its equipment flush to the body of the pole.  Thanks for the clarification, Shannon.

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Most Favored Wireless Lessee Clause?

One of the big wireless carriers has added an interesting new ‘standard provision’ in its lease template.  It’s a clause that makes that particular lessee the ‘most favored lessee’ over the decades-long life of the agreement.

Some of you will recognize this type of contract provision as a Most Favored Nation (“MFN”) clause.

In the wireless leasing context, a wireless landlord granting this MFN might be called a “Most Flagrant Numskull.”

I’ll review the meat of the MFN clause. Then I’ll you how we’re handling this odious little clause for our wireless landlord clients.

Paraphrased, major elements of the MFN cause require the Lessor to guarantee to its wireless carrier tenant that if the Lessor does any subsequent lease deal…not just for wireless…with another entity at the same property — or even at an entirely different property anywhere in the world — then the wireless tenant gets to decide whether they want those same better deal points

The elements of the MFN include rent, contract benefits, as well as the terms and conditions for any deal the lessor does for identical or even similar land deals.  Essentially, every deal point comes into play. The MFN also requires that the landlord timely disclose every one of  those lease deals to the carrier, but the carrier reserves the right to reject any or all of the other terms if it doesn’t like them.

Oh, yes, through the MFN, the carrier reserves the right to independently dig into every deal the landlord does. Arguably, this means that any type of similar deal the landlord does anywhere else in the world has to given to the wireless tenant to pick and choose to see if they want also, some, or none of the terms retroactively.

Also, there’s no limit to the number of times or deals that the MFN can be used to favorably tweak its wireless lease.

What’s a landlord to do?

Well, there are two obvious answers to the MFN issue.

The answer I particularly like is to AGREE to the MFN clause and…

wait for it… wait for it…

…the landlord requires that the carrier mirror the MFN clause so that the wireless carrier has to give the very same bundle of rights to landlord. Yeah, like that’s going to fly with the carrier.

Okay, you can probably guess the better second answer: We recommend our clients strike the clause and tell the carrier to keep their hands inside their own ride at all times.

Do I chide the wireless companies for overreaching clauses like this?  Of course not.

The legal duty owned by management to its wireless company shareholders is to enrich the shareholders regardless of the legal and financial devastation they might do to the unknowing landlord.  There are no morals involved here. It’s simply the way of business.

It’s also why we enjoy working with wireless site landlords to point out the obvious and not-so-obvious legal landmines buried in wireless site leases.

Jonathan

(Base photo: By Reedhawk – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=36811331)

 

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Sprint Uses My Photo of Mobilitie to Promote Small Cells

I guess Sprint really, really likes my cell site photo collection, and photos I use in my lectures.  So much, in fact, that they they included one of my annotated photos of a Mobilitie ‘pox-on-a-pole’ site in Los Angeles as a presentation tool in an Ex Parte meeting with 9 staff members at the FCC on October 23, 2017.  Here’s my annotated photo, used by Sprint in its Ex Parte presentation:


Did Sprint bother to ask me for permission to use my intellectual property in its Ex Parte presentation?

Of course not.

Does my annotated photograph above, used by Sprint without my permission, look like the type of cell you’d want in front of your residential balcony?

I suspect not.

Hey, Sprint (and specifically Keith Buell), the next time you’d like to use my intellectual property, please consider giving me a call first.

Here’s a link to Sprint’s Ex Parte 4-page filing containing MY photo: CLICK HERE.

jlk

 

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SB 649 VETOED BY GOV. BROWN!

Very late last night (October 15, 2017), Governor Jerry Brown VETOED Senate Bill 649 (Hueso). Thank you Gov. Brown!

SB 649 was nothing more than an obscene transfer of wealth away from California citizens to wireless industry and cable TV industry shareholders by way of grossly reduced site rental fees, far below their fair market . . . → Read More: SB 649 VETOED BY GOV. BROWN!

Crown Castle Upping the Game in Small Cells

I’ve had a chance to see a preview of some very innovative designs by Crown Castle to hide pairs of Ericsson antenna/radio integrated small cells on light standards. Photos to follow soon.

Crown Castle is to be commended. This is standard-setting stuff.

jlk

SB649: Autonomous Cars and Autonomous Lies

In a frantic effort to try and salvage SB649 (the “Wireless Industry Prevarication and Theft of the People’s Property Act”) from a veto by Gov. Brown, the wireless industry has come up with a nifty new lie: Without 5G small cells we cannot have autonomous cars.

Huh?

Well, with other industry ‘sounds good’ myths debunked, . . . → Read More: SB649: Autonomous Cars and Autonomous Lies

Sprint, T-Mobile, Cable TV, Mobilitie, and Removal Bonds

Months ago I was pondering the society news pages talking about Sprint pursuing a marriage with the cable TV industry. Today the society pages say the off-again, on-again romance between Sprint and T-Mobile is back on-again, and may well lead to their marriage. If that marriage is consummated, I think it’s likely that T-Mobile will . . . → Read More: Sprint, T-Mobile, Cable TV, Mobilitie, and Removal Bonds

A Modest Proposal to ‘Shake Up’ SB 649

California is a part of the Pacific Rim’s earthquake ring of fire, as the wireless industry likes to remind our State Senators and Assembly Members. In fact, as part of its full court press on California legislators to pass SB 649 into law, one of the more commonly-heard arguments in legislative offices is that 5G . . . → Read More: A Modest Proposal to ‘Shake Up’ SB 649

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