I am immensely pleased (and just a bit proud) to report that Tripp May needs to change his business cards. Out with those that said, “Post Bar Law Clerk” and in with those that say, “Lawyer”.
The news came at 6:00 p.m. tonight. I expect he’ll be sworn in early next week.
Did I mention how proud of him I am? I really am!
Way to go, Tripp!
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.
The 16 minute segment is now on line. You may listen to the audio segment via the show page: http://www.kcrw.com/news/programs/ww/ww131029the_no_longer_hidden
This was a fun experience, and one that I hope will not be my last.
Recommended.
Jonathan
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.
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.
Here is the decision: T-Mobile.v.Milton.2013-9-05.201210487
According to reports published in various newspapers, including the Los Angeles Times, Time Warner Cable and CBS have ended their fight over retransmission rights. Hopefully that means that (a) Time Warner Cable subscribers will see all of the CBS channels restored very quickly, and (b) that CBdisengeniouS will restore access to its online content from Time Warner Cable IP addresses.
This doesn’t end the other fight…the lawsuits from subscribers who claim that they (we) are owed for the unannounced decimation of all of the CBS channels during this battle (except, oddly, one CBS sports channel here in L.A. that TWC seems to have missed).
Now that the battle is over, we’ll see how those were the collateral damage will fair. They are called Time Warner Cable subscribers.
Also, we’ll have to wait to see if Congress steps in to amend the Telecom Act to give the FCC stronger teeth to resolve these disputes.
Just about 4 minutes ago, at 2:00 p.m. Pacific Time the saga of Time Warner Cable and CBS entered its second month. Time Warner Cable still says they are taking the high road to hold down cable prices, and CBS still says that they want to be paid a fair price for the highest rated network.
Congress and the FCC have made noises reminding each side of its duty to the public, which has fallen on deaf ears.
At this point, CBS seems determined to let this stupidity continue to the start of the football season. They appear to be betting that once Time Warner Cable subscribers don’t get football, the will get another provider.
Personally, I don’t have the football gene, so it’s no big deal to me, but I do miss the CBS news programs line 60 Minutes, Sunday Morning, the local CBS new channels in L.A. (2 and 9).
I’ve said it before; and I’ll say it even louder now: More Pox, please! So far the pox I’ve tossed hasn’t hit home.
Oh, by the way, I spent a bit over an hour today waiting in line at Time Warner Cable office in Santa Monica. Why? To snatch up one of the DTV antennas they’re handing out for free.
Later this weekend, I’ll post here about the antenna, with pictures. Hold your breath, just like I’m holding mine for a resolution of the TIme Warner Cable v. CBS battle.
Jonathan
PS: It was about 80 degrees waiting in line at the TWC office. If I were in the marketing department at Dish, I’d be setting up free lemonade stands right outside of every Time Warner Cable office in L.A. “If Time Warner gives you lemons, take Dish Lemonade…and this sign up form.”
As you may have heard, Time Warner Cable today started offering free over-the-air antennas to its victims of the Great CBS Blackout.
Just pop by one of their offices lickety-split and you can pick one up of those shiny new antennas was the gist of the announcement and ads.
That got me thinking!
I’m a Time Warner Cable victim of the great CBS blackout, so said to myself, “Self, why don’t you get in your car and drive on down to the Time Warner Cable office in Santa Monica and pick-up one of those dandy new free antenna!” Then I said to myself, “Great idea, Self!” Then we both got in the car and headed to Time Warner Cable’s office just a few miles away.
After waiting in the line at Time Warner Cables office, I found out (initially by overhearing a lovely mature woman expressing her, ah, great discontent) that Time Warner’s Santa Monica office ran through the three boxes of antennas by midday today. Moreover, nobody had any idea when more antennas might arrive.
The customer service representative, safety ensconced behind a plexiglass security wall, suggested that we should come back on Monday and maybe they’d have more antennas…or maybe not.
Way to go, Time Warner Cable! Way to gooooooooooo………
By the way, welcome to ‘Week Three’ of the Great CBS Blackout. The third week started about 2 hours ago here in L.A.
I’m going home to back a cake to celebrate this milestone of corporate concern for its customers and viewers.
-Jonathan
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…’
“…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.
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.
-Jonathan
Well, we’re about 1 1/2 weeks into the sandbox fight between the two bullies, Time Warner Cable and CBS. They continue their stupid fight, throwing sand on each other, but also throwing sand on everyone else chained to their sandbox.
CBdisengeniouS continues to black out its web content only to those unlucky enough to come in through a TWC IP address, regardless of whether the viewer subscribers to TW cable of some other video source.
TWC continues to disingenuously post billboard messages on selected CBS channels telling customers they are fighting to hold the cost of cable TV when we all know the history of cable TV rate increases consistently topping inflation, and then some. TWC’s next excessive rate increase will be a very interesting event.
No, Time Warner, Starz Family is not s substitute for CBS programming.
The FCC, who SHOULD be teaching both of the bullies a lesson upside their heads, has sternly asked them to quit fighting, suggesting that it might step in to break up the fight.
Class action lawsuits will flow into TWC as soon as the bullies stop their fight to relieve TWC of the money it continues to collect for services it continues not to provide.How destructive for all concerned.
How very stupid for the pugilists.
