Category: Legal

Verizon Buying Comcast? Good idea, sort of.

Verizon Buying Comcast? Good idea, sort of.

Posted on by Dr. Jonathan L. Kramer

Rumors are circulating that Verizon is considering buying Comcast.  Largely ignoring the horrible public policy and anti-competitive issues, the deal would make sense from various technology standpoints.

Consider:

  • Comcast runs one of the largest Wi-Fi networks in the U.S.  Verizon needs Wi-Fi as a critical element of offloading traffic from its cellular/PCS/AWS networks.  Cellular nodes, like Wi-Fi nodes can be installed and provisioned in less than an hour.
  • Comcast has significant cable passings in New England, New York, Pennsylvania, Georgia, Florida, Texas, Colorado, California, and Washington State, with smaller footprints in New Mexico, Alabama, Mississippi, Arizona, and the Twin Cities.  Comcast is already where Verizon wants to be for 5G+…150 feet from the customer.
  • Comcast has largely been able to deploy Wi-Fi nodes without local governments applying their various wireless ordinances to those installations.  Verizon will argue that installing Wi-Fi/5G+ nodes should be exempt from local wireless ordinances.
  • Comcast’s backhaul and inter-city fiber network is national and dynamic.  Verizon can utilize that network to increase its own inter-city transport capacity keeping much more of its wireless traffic on its own end-to-end network.
  • Verizon can (and should) do what Comcast has not: Get rid of coaxial subscriber drops in favor of wireless drops, which would tremendously reduce the cable network in-home maintenance and labor force costs for Verizon.

There are other reasons why a Verizon purchase of Comcast would make sense, not the least of which would be to battle back against AT&T’s purchase of DirecTV and the Time Warner programming assets.

Will Dish Network be next to fall?  How about SiriusXM?

In this new Tumpian era, what would have been unthinkable a week ago might need some rethinking.

Jonathan

PS… Attention Verizon and Comcast legal departments: The combination logo at the top of this page is a parody to illustrate my opinion piece for commenting and criticizing purposes only. Really. Don’t get bunched up over it.
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LPTV/Translators/NAB v. FCC/Microsoft/Google

Posted on by Dr. Jonathan L. Kramer

Today’s San Francisco Chronicle features an interesting story about the tension between LPTV broadcasters and TV translator operators verus an FCC push to clear some TV channels for a new national WiFi-type of service.  On one side are the NAB, LPTV braocasters, and TV translators.  On the other side are an odd alliance of Microsoft and Google.  I have a couple of quotes in the article that was written by Dominic Fracassa.  Mr. Fracassa is the Chronicle’s business reporter covering technology matters.

Here’s the story link:

http://www.sfchronicle.com/business/article/Low-power-TV-stations-serving-niches-could-cede-10857083.php

jlk

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Congratulations to CALWA, the California Wireless Association on 10 Years

Posted on by Dr. Jonathan L. Kramer

The California Wireless Association (CALWA) is celebrating its 10th anniversary. I am delighted.

As a ‘government guy’ you might ask why I care about the state’s wireless industry association.  Well, as it happens, I was one of its very first members, believing then, and now, that bridges are better than gulfs.  CALWA reached out to welcome local government officials into its ranks, and over the years, I have encouraged local government officials to join CALWA.  I continue to do so today.

CALWA runs annual education seminars worth attending, especially when they ask Tripp or yours truly to speak.*  They also throw some great holiday parties.  Although I lack the golf gene, I’m told their golfing events are pretty cool.

If you are a local government official in California and want to have access to an important (if a wee-bit biased) wireless information resource, go ahead and join CALWA.

Jonathan

 

* Hey, CALWA, it’s been a while since you invited me.  Just ask!  🙂

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Does Spectrum (Charter) Cable Violate California Law?

Posted on by Dr. Jonathan L. Kramer

Charter Cable purchased Time Warner Cable and promptly rebranded as “Spectrum.” That rebranding includes the Time Warner properties in Southern California, including where I live.

Over the last week I have had the need to have several service calls at my home that require I be present.

Imagine my surprise when I found out that Time Warner Charter Spectrum Cable apparently ignores California law which requires it give customers the option of a 4-hour window appointment for service calls that require the customer be home.

In the last week I have called in and asked twice for a four hour window appointment, and twice I’ve been refused. The service reps claim they have no option on the computer screen to offer such an appointment. They offer one hour window appointments but that’s not the law which provides for certain remedies if the four hour window is violated.

I suppose this should come as no surprise since it is likely that most consumers are unaware of the state law designed to protect them, and which provides  for up to $600 if the cable company misses the appointment without a valid excuse.

Below is The text of the state law  that Spectrum seems to be ignoring:

Civil Code Section 1722. (b) (1) Cable television companies shall inform their subscribers of their right to service connection or repair within a four-hour period, if the presence of the subscriber is required, by offering the four-hour period at the time the subscriber calls for service connection or repair. Whenever a subscriber contracts with a cable television company for a service connection or repair which is to take place at a later date, and the parties have agreed that the presence of the subscriber is required, the cable company and the subscriber shall agree, prior to the date of service connection or repair, on the time for the commencement of the four-hour period for the service connection or repair.

(2) If the service connection or repair is not commenced within the specified four-hour period, except for delays caused by unforeseen or unavoidable occurrences beyond the control of the company, the subscriber may bring an action in small claims court against the company for lost wages, expenses actually incurred or other actual damages not exceeding a total of six hundred dollars ($600).

(3) No action shall be considered valid if the subscriber was not present at the time, within the specified period, that the company attempted to make the service connection or repair or made a diligent attempt to notify the subscriber by telephone or in person of its inability to do so because of unforeseen or unavoidable occurrences beyond its control. If notification is by telephone, the cable television company or its agent shall leave a telephone number for a return telephone call by the subscriber to the company or its agent, to enable the consumer to arrange a new two-hour period for service connection or repair.

(4) In any small claims action, logs and other business records maintained by the company or its agents in the ordinary course of business shall be prima facie evidence of the time period specified for the commencement of the service connection or repair and the time that the company or its agents attempted to make the service connection or repair, or of a diligent attempt by the company to notify the subscriber in person or by telephone of a delay caused by unforeseen or unavoidable occurrences.

(5) It shall be a defense to the action if a diligent attempt was made to notify the subscriber of a delay caused by unforeseen or unavoidable occurrences beyond the control of the company or its agents, or the company or its agents were unable to notify the subscriber because of the subscriber s absence or unavailability during the four-hour period, and, in either instance, the cable television company commenced service or repairs within a newly agreed upon two-hour period.

(6) No action shall be considered valid against a cable television company pursuant to this section when the franchise or any local ordinance provides the subscriber with a remedy for a delay in commencement of a service connection or repair and the subscriber has elected to pursue that remedy. If a subscriber elects to pursue his or her remedies against a cable television company under this section, the franchising or state or local licensing authority shall be barred from imposing any fine, penalty, or other sanction against the company, arising out of the same incident.

Is this law important? Of course it is, because it’s the law, and because of the protections it provides to the public.  I personally know that having used it several times to sue my cable operators for missing appointments. I recovered each time. That’s what the law is intended to do, and why it offends the law and subscribers when it is ignored by a cable operator.

Jonathan

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Bloomberg BNA on the T-Mobile v. San Francisco Appellate Decision

Posted on by Dr. Jonathan L. Kramer

In her article, “In T-Mobile Wireless Equipment Dispute, San Francisco Wins on Aesthetics” (September 20, 2016) reporter Bloomberg/BNA Lydia Beyoud discusses some of the key impacts of San Francisco’s appellate win in the case.  I provided her with insights and several quotes.  I link the decision to 5G deployment pressures which drive carriers to want to build sites in the public right of way very close to users.

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Who are John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher and why are they important?

Posted on by Dr. Jonathan L. Kramer

When Crown Castle was unhappy with a decision by the City of Westfield, Indiana denying a cell site application, they sued Westfield in state court. The case is:

Crown Castle Towers 06-2 LLC v. City of Westfield, Tracy Pielemeier, Ginny Kelleheret al, Case No. 29C01-1511-MI-009308.

Of course Crown Castle sued the City of Westfield.  No surprise there. But Crown Castle through its attorneys took the nearly unheard of step of suing John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher, all of whom spoke out against Crown Castle’s project at a City of Westfield public hearing.

Okay, Crown Castle said in a statement delivered to the local press that they no choice to include John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher in the suit. Hogwash. It was, I believe, a stupid and ill-sighted move to stifle future public comment on matters of public interest, specifically pending cell site applications.

SLAPP and ANTI-SLAPP

I’m not expert on Indiana law, but Indiana has an “ANTI-SLAPP” statute designed to quash law suits filed to stifle political speech in public forums. A SLAPP is a “strategic law suit against public participation” and an ANTI-SLAPP is a law suit to quash the SLAPP.  See the Digital Medial Law Project website for more information on SLAPPs and ANTI-SLAPPs in Indiana.  It seems to me that Crown Castle’s inclusion of John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher in the suit against the City of Westfield amounted to a SLAPP.

Had Crown Castle (or any other similarly-situated plaintiff) included as law suit defendants parties merely testifying against it at a public hearing in California or New Mexico, where I am licensed to practice law, I would have immediately recommended filing an ANTI-SLAPP to dismiss those parties.  They simply wanted their voices to be heard during the public hearing on a matter of public concern. I would have also recommend seeking attorneys fees against Crown Castle on behalf of the SLAPPed defendants.

Apologies are Due

I believe that Crown Castle and its local counsel of record, Matthew Price, Esq., Scott Leisz, Esq., and Joshua Burress, Esq. jointly owe John DuBois, Suzy DuBois, Tracy Pielemeier, Kristen Burkman, and Ginny Kelleher a public apology.  They should also publicly commit to not making law suit defendants out of those who speak against Crown Castle at public hearings.

Sue the public agency for denying a cell site application? Fine. Let the decision stand the test of the Act and other laws.  Sue the public who stand up against Crown Castle at a public hearing? Not fine.

Judge Felix’s April 15, 2016 opinion, remanding the case back for further hearings, can be found HERE.

jlk

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Sometimes the Right Answer is Found in Your Gut

Sometimes the Right Answer is Found in Your Gut

Posted on by Dr. Jonathan L. Kramer

I was recently approached by a potential client (we call them PCs) who needed some help in connection with a wireless lease matter. We have never worked with this PC before. Talking with the PC, I got a sense that this could turn out to be the other type of PC, a problem client, the type of PC attorneys have very bad dreams about, but I set aside those feelings and quoted the PC the range of fees I thought would necessary to complete the work.

twistedgut.1024px-Volvulus_02At PC’s request I sent a fee agreement.  The fee agreement called for a trust account fee deposit for the high end of the estimated fees, which is common for new clients, and based on my feelings necessary for this PC.

The PC signed and returned the fee agreement (which I had not yet countersigned), but without checking with me first, the PC changed the fee deposit to be less than 50% of what I quoted.  This is always an alarm bell moment for an attorney.

Trusting my gut, which was now fully twisted, I decided to send the PC a non-engagement letter.  A non-engagement letter is what attorneys send when we elect NOT to take on a client or a matter.

I let the PC know in the non-engagement letter that I had not authorized or consented to the reduction in the fee deposit…my firm’s security for getting paid after the work is done…much less a change resulting in a reduction of more than 50% of that security.  I then told the PC that I was no longer willing to take on the assignment.

The PC then offered to come up to 80% of what I wanted for the trust account fee deposit.  Again I said no, and that my decision was irreversible.

The PC finally figured out that I was serious about declining the work, and about an hour or two later the no-longer PC wrote me a carefully crafted, insightful, and thoughtful message.  I quote that message verbatim:

Your a fucking asshole and guys like you always get what’s coming.
I bet your wife cheats on you! (Small dick I bet!)
Army infantry never forgets their enemy!
See you when I see you

Yes, I’m really glad I listened to my gut.

jlk

Photo credit: آرمین

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A Cell Tower Lease Landlord Attorney's Dangerous Tool - A Tape Measure

A Cell Tower Lease Landlord Attorney’s Dangerous Tool – A Tape Measure

Posted on by Dr. Jonathan L. Kramer

tape-measure.smallOver the years, my staff and I have inspected a heck of a lot of cell sites on behalf of our cell site landlord clients for lease compliance purposes, and for local governments who ask us to perform the same inspections for permit compliance purposes.

Well, it turns out that somewhere about 30% to 40% of the time, the cell site (a) exceeds the size allowed in the lease; or (b) the cell site has been placed…or moved…to a location other than was was shown in the lease or permit; or (c) other mischief in the physical placement of the site has occurred.

We find these things when we use our very handy tool, a 100 foot tape measure.  In fact, the photo is of one of our tape measures.

Why is this important?  Over the last couple of years, we have recovered over $1 million in lease underpayments and increased cell site lease payments going forward. Are you giving away your property without proper compensation?  For local governments, a cell site that violates a permit condition is most likely going to be excluded from Section 6409(a) and NOT subject to the mandatory approval required under that law.  If you’re a local government planner or attorney, you KNOW how important that can be in your planning process.

I think this is such a powerful tool for a cell site landlord’s attorney, or an adviser-inspector to local governments that I start out most of my lectures advising landlords, their attorneys, and inspectors to go out and spend $20ish to buy a 100 foot tape measure, measure the boundaries of their cell site, and compare the actual measurements and cell site location to what’s shown in the lease or permit.

Recently, I received some very kind words about the power of the tape measure from a landlord’s attorney in Missouri, Brandon Moonier, Esq. of Thurman, Howard, Weber, Senkel & Norrick, LLC, who wrote saying:

I have taken many of Jonathan Kramer’s seminars and will keep going back for more.  His insightful, practical and relatable approach to cell tower leases left me with valuable tools to use in my practice.  Upon Mr. Kramer’s urging, one of the tools I now carry is a tape measure. This simple trick of measuring the leased area has made thousands of dollars for my clients.   Bravo, Mr. Kramer.  Please take your bow.

–Brandon T. Moonier, Esq., Partner of Thurman Law Firm, Hillsboro, Missouri. 

Well, it’s always gratifying to hear that lessons taught are lessons being learned–and put to good use.  Bravo, Mr. Moonier…now YOU take your own bow!

-Jonathan

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Rome (Maine) Conquers Global Tower Assets

Posted on by Dr. Jonathan L. Kramer

GLOBAL TOWER ASSETS, LLC sued the Town of Rome, Maine and its Planning Board for a denial of a cell site project.

Unfortunately for Global Tower, it sued after receiving the Planning Board’s denial.  It did not take an appeal to the Town.  The District Court hearing the case “held that the Planning Board’s denial of the application was not a final action that Applicants were entitled to challenge under the TCA.” (Internal quotes omitted.)

Global appealed to the First Circuit Court of Appeals, which sustained the District Court’s ruling against the tower company.  The Court of Appeals said,

The appellants contend that the opportunity to bring an
administrative appeal should not prevent their TCA challenge from
going forward. But, in keeping with basic principles of
administrative law and the purposes of the TCA, we disagree. As
a matter of state law, the planning board’s denial may be reviewed
in state court only after the local board of appeals has exercised
its own independent review. As a result, we agree with the
appellees — the planning board and the Town of Rome, Maine —
that the planning board’s decision does not mark the end of the
administrative process and thus is not a “final action” for TCA
purposes.

If you’d like to read the Court of Appeals’ decision, CLICK HERE.

This reminds me of a case I was involved in many years ago when NewPath Networks sued the City of Irvine before completing the administrative process.

Jonathan

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Want to Sell Your Cell Site Lease? Read the Fine Print!

Posted on by Dr. Jonathan L. Kramer

electwarnWant to Sell your Cell Site Lease?

Our law firm helps landlords monetize (read: sell) their cell tower or cell site lease.  It’s a very specialized area of land-use and technology law. There are times such deals make sense, and many more times when they don’t, but you should discuss your situation with a competent lawyer, AND a competent tax CPA.

Many Pitfalls When You Sell your Cell Site Lease!

There are many pitfalls in the standard boilerplate agreements provided by the big guys who buy-out leases.  One of my favorite pitfalls is language in the agreement that says that upon termination of the buyout, the landlord has to accept as-is whatever agreements the buy-out firm put in place before the expiration of their contract or easement.  Here’s the stinker:  Let’s say you sell your cell tower lease for 30 years.  During that time the original lease you sold expires, and the buy out enters into a new agreement for 100 years, taking a single payment of, say $1,000,000.  In 30 years, you get the lease rights back, but find yourself with a cell site on your property for 70 years with NO INCOME and other bad terms.  Yes, this really can happen to you if you’re not careful.

The (Two) Cell Site Lease Sale Documents Count

It’s common for a cell site lease sale to involve two documents: The contract selling the cell site lease to the buy-out firm, and an easement that allows them to enter into new agreements when your current lease expires.  There are pitfalls in each, so if you’re not going to have a competent attorney help you, be very careful to think about how you might be stung by some of the more obscure terms in the agreements.  Here’s a tip:  The more words in a fully-justified paragraph, the more likely bad things are contained therein.  It’s a old lawyer’s gambit.  Presume that people won’t/can’t read and understand densely worded and long paragraphs.  Stick the bad (for the seller) stuff in the middle of those paragraphs.

Don’t get bit.  Need some help?  Give me a call at Telecom Law Firm on 310-405-7333.

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