UPDATE: Seems like the voters in the 33rd were not looking for rolls of tin foil. Mr. Mottus received just 2.4% of the votes cast. He came in 7th. The 6th place candidate had a hair shy of 3-times as many votes compared with Mr. Mottus.
Meet Mr. Kevin Mottus. He is running for Congress to fill the 33rd Congressional Seat here in Los Angeles being vacated by 40-year veteran congressional Henry Waxman.
I don’t think Mr. Mottus will be getting any campaign donations from the PCIA, CTIA, or the California Wireless Association.
Mr. Mottus seems to think of brain cancer as his chief opponent in the race for the 33rd District seat, and that cancer is from only one possible source. Yup. You guessed it.
The campaign website of Mr. Mottus makes clear his big issue — the one that populates the majority of his front page, and is reenforced by an entire page devoted to scare videos. He asserts that “[w]ithout any actual Safety Standards in place for this Technology, we are being used as a Massive Human Experiment on the long term Health Effects from RF Radiation Exposure from Wireless.”
Gee, I thought 47 C.F.R. 1.1307 et seq were those actual Safety Standards.
Listen to the recorded message Mr. Mottus bombarding via autodialers to 33rd District residents:
John Pestle and I will once again present an updated version of our very popular lease buy-out lecture, “Selling Your Cell Tower Lease.” This time we’ll present on April 9th, 2014 at 1:00 p.m. EDT/10:00 a.m. PDT. Lorman Education Services hosts many of the lectures John and I present, and they do an outstanding job at it.
Here’s the updated lecture description:
Property owners with a cell tower or cell antennas on their property routinely receive six-figure offers to buy the cell tower lease and future leasing rights. While very attractive, those offers-typically structured as perpetual easements-pose unusual legal, financial, and technical risks that the property owner and its regular attorney typically are not familiar with. This live webinar will guide property owners and their attorneys as they evaluate and respond to such offers. It includes covering what drives the offers, typical prices, how to evaluate financial terms to determine whether selling makes sense (and when it doesn’t). Those who attend will be better able to evaluate purchase offers, identify and modify the very one-sided documents offered by purchasers, and address some of the risks involved in a sale. Risks include making sure the property owner is not hindered in developing or using its property, ensuring that future sums promised by the purchaser in fact are paid and the contract honored (and the sale terminated if they are not), insurance and bankruptcy protections, as well as questions as to the financial solvency of the buyer. These risks increase as the easement term increases (typically from 50 years to perpetual) given that the property owner continues to own the underlying property. Government agencies face all of the preceding issues, plus special and fundamental questions of municipal authority, compliance with municipal finance/procurement statutes, prohibitions on waste, and risks of accidentally triggering property reverters.
Learning Objectives:
– You will be able to know when a sale does and does not make sense for you.
– You will be able to discuss revising documents to protect property owner and address the preceding issues.
– You will be able to recognize sales terms preventing the property owner’s future use or development of its property.
– You will be able to define the major legal risks involved in selling cell tower leases and easements.
The last twenty-four hours have seen two tower incidents resulting in at least three tower climber deaths, the subsequent death of a local firefighter, and two additional serious injuries.
The first fatal incident occurred last night in Bluetown, Texas, where a solo tower climber fell from a tower standing more than 1,000 fee tall. The unidentified man died from head trauma.
The climber was found by local deputies at about 6 p.m. local time last night. He was found some 30 feet away from the tower. This suggests the climber fell from a great height.
The second fatal incident was a tower failure today in Clarksburg, West Virginia. That failure took the lives of two tower workers. Later, during the rescue, a local firefighter was injured during a secondary tower collapse. That firefighter later died of his injuries.
Two tower workers on the ground in the Clarksburg tower failure were also injured.
Dobbs: “If you’re the cell phone company where are your permits?” Gold Hat: “Permits? We ain’t got no permits. We don’t need no permits! I don’t have to show you any stinkin’ permits!”
-with apologies to B. Traven and then John Huston
It seems that Ridgewood, New Jersey is non-to-happy with AT&T Wireless at the moment.
Can you guess why?
Well, according to a published report on NewJersey.com, it seems like AT&T Wireless decided that it would forgo actually pulling permits for a COW (Cell on Wheels) which it parked and then set up at a local gas station in town.
A portion of the NewJersey.com new report is telling. . .
According to AT&T’s public relations representative Ellen Webner, the tower, called a cell site on wheels or COW, is “in a temporary location while we work with the local community, zoning, on a permanent location.”
She did not comment when asked to explain why the village was not previously notified by AT&T about the tower.
“We are now working with the town through zoning and going through all proper procedures,” Webner said.
I enjoyed Ms. Webner’s use of the word “now” in that last sentence.
– Read the entire story at THIS LINK. Opens in a new window.
It appears that the one of the leading wireless industry trade associations is getting ready to launch a new California legislative initiative to sharply restrict existing siting controls by local governments under current laws, and to marginalize CEAQ by changing the Permit Streamlining Act.
A copy of the circulating draft found its way into my hands, which appears to be authored by a well-known California wireless industry lawyer with input from a government affairs attorney working at a major wireless trade association.
There are two main areas expected to form the industry’s attack. Each area of the expected attack is discussed below.
I
Unlimited Permit Terms
for Wireless Sites
Under an existing California law from 2006, Cities and Counties shall not. . .”[u]n reasonably limit the duration of any permit for a wireless telecommunications facility. Limits of less than 10 years are resumed to be unreasonable absent public safety reasons or substantial land use reasons. However, cities and counties may establish a build out period for a site.” (California Government Code § 65850.6).
In a circulating industry draft, they would bar all wireless permit duration and build out limitations. They seem intent on accomplish this by changing the Government Code to read that Cities and Counties shall not “[l]imit the duration of any permit for a wireless telecommunications facility.”
As you can see, the draft amendment if enacted would require that when a city or country government issues a wireless telecommunications facility permit, there be no limit to its term.
As a “Plan B” if the industry is unsuccessful in finding a legislator willing to take the political heat for deleting the term limitation altogether (which will certainly be unpopular with the public who care about such things), it appears that the industry will press for permits that are valid for at longer than 25 years.
II Short Circuit the
Permit Streamlining Act and CEQA Processes
The wireless industry seems to believe that 2014 is the right year to modify California’s Permit Streamlining Act (the “PSA”) to correct what it suddenly sees as a problem dating back some 20 years.
The law for the past 20 years has been that the PSA deadline for a government to take an action on a project only starts to run when the California Environmental Quality Act (“CEAQ”) review is completed, but that the time-frame for completing the CEAQ analysis is not mandatory. The ‘solution’ to the ‘problem’ (as viewed by the wireless industry) is to perform a major rejiggering of the established PSA rules. The rejiggering would be to make the government take-action deadline based on when the application is tendered as complete to the local government, thereby ignoring whether the CEAQ process has been completed when the clock runs out.
To preempt CEAQ as a vital element of wireless siting–as it appears is the wireless industry’s goal–the industry will apparently propose multiple and significant changes to Government Code § 65950.
Maybe the industry will try slipping its 2014 Christmas List above into the now dormant AB 162 when that bill is expected to return from the dead sometime in the next 45 days. Stay tuned… this will be interesting.
Warren Olney, host of Which Way L.A. on KCRW (NPR in Southern California) devoted a segment of today’s program to wireless tower siting.
Titled, “The No Longer Hidden Cost of Wireless Technology” Warren focus on the looming debate about more cell sites closer to their customers.
Richard Stein, a Los Angeles resident with an existing AT&T wireless site on a utility pole in front of his home was interviewed about AT&T’s plans to quadruple the size of the antennas, and to place a controlled environment vault (“CEV”) in the right-of-way near the pole.
AT&T declined to be interviewed for the show regarding its cell site in front of Mr. Stein’s home.
Warren spoke with me about technology and legal issues related to wireless siting, and also about the pending FCC Notice of Proposed Rulemaking that could reshape the entire landscape regarding cell siting regulations in the U.S. We also covered Section 6409(a).
Robert Jystad, the incoming president of the California Wireless Association spoke on why carriers need to bring their services closer to homes and end-users. He gave the facts and figures about the wireless society. He also alluded to, but did not outright say that Mr. Stein’s opposition to AT&T’s plan was for a reason other than aesthetics, which Mr. Stein rejected. As a side note, you might be surprised to learn that I was the one that recommended to the show’s producer, Evan George that Mr. Jystad be interviewed for the segment. It seemed important to make sure an industry voice had the opportunity to weigh in to the discussion.
According to a published reports, Cole County Circuit Judge Patricia Joyce has issued a permanent injunction and declared the two laws as being invalid. This follows the preliminary injunction she issued on Aug. 27 staying the laws (HB 331) from taking effect as scheduled the next day.
Judge Joyce ruled that the HB 331 was flawed procedurally, by violating state constitutional provisions that bills contain only one subject that is clearly expressed in its title, and that lawmakers cannot amend them to change a bills’ original purpose.
Read more here: http://www.miamiherald.com/2013/10/22/3704343/judge-strikes-down-mo-laws-on.html#storylink=cpy
This is great news for local governments in Missouri, which battled against ‘Super 6409 + Super Shot Clock’ rules promoted by AT&T on behalf of the wireless industry. Hopefully the Missouri Attorney General’s office will not appeal the ruling. It has until Dec. 2 to make that decision.
For more on HB 331, including the full text of the law, see THIS POST here at CellTowerSites.com.
Today, in an artfully written decision, the Chief Judge of the 11th Circuit Court of Appeals announced the decision of the court in T-Mobile South, LLC v. City of Milton.
At issue was whether the City’s denial of three cell sites met the “in writing” requirement of 47 U.SC. § 332(c)(7)(B)(iii).
It seems as if it would be a simple matter to determine whether a local government’s decision to deny a cell tower construction permit is “in writing.” After all, everyone knows what “in” means and everyone knows what “writing” means. How much simpler and clearer could the statutory language be? As it turns out, however, those two words as they appear in the statute have been subject to some strikingly different interpretations by other courts of appeals, which are echoed in the parties’ opposing positions in this case.
The short (26 page) decision clearly and in English talks about whether the written decision must, itself, cite the reasons for denial (it does not)
All that statutory provision requires of the denial decision is that it be in writing and be supported by substantial evidence in a written record. Whether the denials in this case were supported by substantial evidence in the written record is not before us, but the existence of that additional requirement necessarily means that there must be reasons for the denial that can be gleaned from the denial itself or from the written record; otherwise, there would be nothing for substantial evidence to support. What is neither expressed nor implied, however, is any requirement that the reasons for a denial must be stated in the letter or some other document that announces the decision, if there is a separate document doing that, or any prohibition against having the reasons stated only in the hearing transcript or minutes.
[Emphasis added.]
Also contained in the decision is a long and interesting decision regarding
In interpreting what the words “in writing” mean in § 332(c)(7)(B)(iii), we are reluctant to import into those words, as some of our sister circuits have, “more pragmatic policy values,” MetroPCS, 400 F.3d at 722, than the words themselves bring along, or to take a more “pragmatic, policy-based approach,” Helcher, 595 F.3d at 718, than the plain meaning of those words take. We are interpreting a statute, not designing one. Although we, like most judges, have enough ego to believe that we could improve a good many statutes if given the chance, statutory construction does not give us that chance if we are true to the judicial function. Our duty is to say what statutory language means, not what it should mean, and not what it would mean if we had drafted it.
Quite an interesting decision. Well worth the read.
A “casualty” clause in a lease is commonly included to provide a way of altering the terms of a lease or outright terminating a lease before its natural expiration if something bad happen.
Something like a fire.
Take a look below at the standard template language found in a very well-known carrier’s boilerplate agreement. After that, I’ll tear it apart for you, as a potential cell site landlord, to better understand what’s going on, and how it might come back to bite you.
CASUALTY. Landlord will provide notice to Tenant of any casualty or other harm affecting the Property within forty-eight (48) hours of the casualty or other harm. If any part of the Communication Facility or Property is damaged by casualty or other harm as to render the Premises unsuitable, in Tenant’s sole determination, then Tenant may terminate this Agreement by providing written notice to Landlord, which termination will be effective as of the date of such casualty or other harm. Upon such termination, Tenant will be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed for any prepaid Rent on a prorata basis. Landlord agrees to permit Tenant to place temporary transmission and reception facilities on the Property, but only until such time as Tenant is able to activate a replacement transmission facility at another location; notwithstanding the termination of this Agreement, such temporary facilities will be governed by all of the terms and conditions of this Agreement, including Rent. If Landlord or Tenant undertakes to rebuild or restore the Premises and/or the Communication Facility, as applicable, Landlord agrees to permit Tenant to place temporary transmission and reception facilities on the Property at no additional Rent until the reconstruction of the Premises and/or the Communication Facility is completed. If Landlord determines not to rebuild or restore the Premises, Landlord will notify Tenant of such determination within thirty (30) days after the casualty or other harm. If Landlord does not so notify Tenant, then Landlord will promptly rebuild or restore the Premises to substantially the same condition as existed before the casualty other harm. Landlord agrees that the Rent shall be abated until the Premises are rebuilt or restored, unless Tenant places temporary transmission and reception facilities on the Property.
Okay, now let’s rip this bad-boy paragraph apart and see what’s under the hood…
“Landlord will provide notice to Tenant of any casualty or other harm affecting the Property…” This sentence places an affirmative duty (a burden) on the landlord to notify the wireless carrier of “any casualty or other harm” affecting the property. So what qualifies as a casualty or other harm affecting the Property? Well, it might be a fire burning down the building, or earthquake, or airplane crashing onto the property, but those are all obvious. What about a toxic gas cloud from a tanker spill 3 miles away wafting over the Property? Yup. How about a small fire in a
“…within forty-eight (48) hours of the casualty or other harm.” Well, that’s 48 hours after ‘it’ happens, whatever ‘it’ is. If you are a landlord who does not live at the property, you might now become aware of the ‘it’ that happens on a Friday night at 7:30 p.m. until you come in on Monday morning. By this time you’ll be in breach of your duty to notify the tenant within 48 hours!
“If any part of the Communication Facility or Property is damaged by casualty or other harm as to render the Premises unsuitable, in Tenant’s sole determination, then Tenant may terminate this Agreement by providing written notice to Landlord, which termination will be effective as of the date of such casualty or other harm.”Okay, let’s break this into even smaller chunks:
“If any part of the Communication Facility…”which would mean the cell site, or any element of it…
“…or Property…”which is your property, upon which the cell site resides…
“…is damaged by casualty or other harm…” which, as we’ve seen above, is anything bad…
“…as to render the Premises unsuitable,…” Unsuitable? Perhaps they just don’t like the Premises anymore. ..
“…in Tenant’s sole determination…” which means that only the tenant gets to decide, and missing the magic word “reasonable.”
“…then Tenant may terminate this Agreement by providing written notice to Landlord,”… Okay, we’re outta here because we sent you a letter…
“…which termination will be effective as of the date of such casualty or other harm.”This allows your tenant to backdate the termination date to the date of the oops.
“Upon such termination, Tenant will be entitled to collect all insurance proceeds payable to Tenant on account thereof…” If your tenant is named as an additional insured on your fire policy, get who gets to collect.
“…and to be reimbursed for any prepaid Rent on a prorata basis.”So, you the tenant just paid you the day before the oops for the entire month, you get to refund all but one day’s rent back to your tenant.
“Landlord agrees to permit Tenant to place temporary transmission and reception facilities on the Property, but only until such time as Tenant is able to activate a replacement transmission facility at another location;…” Hold on, the cell site burned down and they terminated the lease, but they still get to bring a temporary cell site on your property? Yup. You got it. For how long? Good question! Since the lease is terminated, they get to stay for as long as they want, somewhere on your property.
“…notwithstanding the termination of this Agreement,…“ Read it this way: ‘even though the Lease is now terminated…’
This is a “casualty” under most cell site leases, even if the fire was caused by the tenant!
“…such temporary facilities will be governed by all of the terms and conditions of this Agreement, including Rent.”…it’s as if you are on a day-to-day agreement, which you cannot terminate, under the terms and conditions of the old lease.
“If Landlord or Tenant undertakes to rebuild or restore the Premises and/or the Communication Facility, as applicable, Landlord agrees to permit Tenant to place temporary transmission and reception facilities on the Property at no additional Rent until the reconstruction of the Premises and/or the Communication Facility is completed.”But if YOU or the tenant decides to rebuild or fix the cell site and your tenant does NOT terminate the lease, you agree to allow the tenant to bring a temporary cell site on your property…for no additional rent…while the fixing is taking place.
“If Landlord determines not to rebuild or restore the Premises, Landlord will notify Tenant of such determination within thirty (30) days after the casualty or other harm.”if you do not intend to fix their cell site, you have to tell them that within 30 days after the oops occurs. Do you think you’re going to have your insurance settlement nailed down in 30 days? Nope, me neither.
“If Landlord does not so notify Tenant, then Landlord will promptly rebuild or restore the Premises to substantially the same condition as existed before the casualty other harm.”Let’s just say that if you forget to notify the tenant within the 30 day window? Get who gets locked-in to fixing the damage? By the way, get who’s going to get stuck with the bill? Yeah, that’s right.
“Landlord agrees that the Rent shall be abated until the Premises are rebuilt or restored, unless Tenant places temporary transmission and reception facilities on the Property.” So if they don’t terminate, and they don’t bring a temporary cell site on the property, you get no rent while their smoldering remains litter your property.
So here’s the kicker: Think about the photograph just above of the burning cell tower. That fire was caused by a welder working on the tower at the direction of the tenant or subtenant. Under the language of the casualty clause you’ve just read, even if a fire (or other casualty) is caused by a tenant’s activities at a cell site…welding, for example…the tenant can still take advantage of all of the benefits of the casualty clause.
Now that you see how the standard cell lease casualty clause does nothing to protect the landlord, and everything to benefit the tenant (and only the tenant), you understand need to revise the casualty clause to limit it to apply to casualties not caused by or attributable to your tenant, and to strike portions of it altogether.
Like I said, don’t be a casualty of a wireless lease casualty clause. We can help you avoid this predicament.
Their (corporate) parents must be so very proud of them!
Now comes James Armstrong, Michal Pourtemour, Vatsana Bilavarn, individually, and on behalf of all others similar situated to sue Time Warner Cable for dropping CBS. Well, not really for dropping CBS, but for breach of contract, deceptive business practices, unjust enrichment, and the like.
If you would like to read all 36 pages of the complaint, filed last week, you can do so by CLICKING HERE.
The suit was filed through the law firm of Weintraub and Selth, APC, a 4-attorney bankruptcy law firm in West Los Angeles.
