Category: General

The End of Chevron Deference: A BIG DEAL for Wireless

The End of Chevron Deference: A BIG DEAL for Wireless

Posted on by Dr. Jonathan L. Kramer

Tripp May and I were quoted today in Inside Towers regarding the Supreme Court’s decision (last Friday) ending Chevron Deference.  For civilians, it’s not a big deal; for the FCC and the wireless industry, it’s a REALLY BIG DEAL.

Here’s the Inside Towers article: https://insidetowers.com/municipalities-cheer-scotus-overturn-of-chevron

…and here’s an extended discussion:

On June 27, 2024, the United States Supreme Court overruled the deferential doctrine it announced forty years ago in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), Now, the Supreme Court holds that the courts must “decide all relevant questions of law . . . and set aside any [agency] action inconsistent with the law as they interpret it.” Loper Bright Enters., v. Raimundo, Secretary of Commerce, No. 22-451, p.12 (S.Ct. June 28, 2024).

Tripp May, Managing Partner of Telecom Law Firm PC says the Supreme Court’s decision in Loper represents a colossal shift in how courts review agency actions, and spells trouble for the wireless industry’s ability to influence the FCC.

What is Chevron deference and why does it matter?

Chevron deference required courts to uphold agency actions, like FCC actions, so long as:

(1) Congress had not specifically addressed an issue or left an ambiguity within the statutory scheme about that issue; and
(2) the agency action was “permissible” within the scope of such statutory gap or ambiguity.

Most importantly, Chevron deference required courts to uphold the agency action that met both these requirements even if the court thought that it had a better interpretation. This now dead doctrine even allowed federal agencies to overrule judicial interpretations given to ambiguous statutes.

Such broad and flexible deference significantly empowered and emboldened federal agencies by largely shielding agency actions from meaningful court challenges. To survive a challenge to an agency’s decisions under Chevron deference, all an agency needed to do was convince a court that the agency’s action reasonably filled a gap or resolved an ambiguity. Over the last four decades, federal agencies have had overwhelming success against judicial challenges to their actions. Loper sends a new and clear signal that the winning streak for federal administrative agencies has come to an end.

What changed after the Loper decision?

Dr. Jonathan Kramer, Telecom Law Firm’s Founding Partner said that Loper overruled Chevron and effectively killed the doctrine that insulates federal agencies from meaningful judicial review. Perhaps the most harmful blow to agency autonomy is the Supreme Court’s holding that federal courts must decide for themselves on the “best” statutory interpretation and should no longer accept an agency action that was merely “permissible” within whatever the statutory gap or ambiguity might reasonably allow. If disputes over statutory interpretation were baseball, the tie no longer goes to the agency.

How does this impact the wireless industry?

At the federal level, the wireless industry has been successful at two things: (1) getting legislation passed riddled with ambiguities, and (2) convincing the FCC to interpret those statutory ambiguities in a way favorable to the industry. Mr. May added that this was a winning strategy under Chevron deference, but almost certainly won’t fly in the new Loper era.

Ambiguous statutes used to open the door for agency discretion. Now those ambiguities invite the courts to second-guess the federal agency’s interpretation. Lobbyists for the wireless industry will have to think longer and harder about whether to push ambiguous statutes like those found in the Telecom Act or the Spectrum Act. Similarly, the FCC will have to think more carefully about whether their interpretations are the best, or merely permissible.

According to Dr. Kramer, wireless industry and FCC lawyers will now have to convince courts that the FCC was exactly right on an issue rather than just hand-grenade close.

The extra degree of difficulty imposed on federal agencies by Loper could well be a good thing: Congress could be spurred to pass clearer and more focused laws, and the FCC might be moved to more carefully consider and discuss whether it faithfully implemented congressional intent before it adopts new rules.

Maybe…just maybe…all the stakeholders will realize that they can avoid the judicial review process altogether if they just reach out and work closer to reach consensus on what the law should be, Mr. May said

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California’s “Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023” (AB-965) Signed Into Law

Posted on by Dr. Jonathan L. Kramer

California Assembly Bill 965, the so-called “Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023” is now California law and will become effective on 1/1/2024.  The new law will live at California Government Code Section 65964.3.

On October 8, 2023, Governor Newsom signed into law Assembly Bill 965.  Introduced by Assembly member Juan Carrillo (D-Palmdale), the Bill purports to speed up broadband deployment by allowing for batched applications in units of up to 25 or 50 sites per batched application for “substantially similar broadband project sites”.

Please understand that this is actually a ‘small cell deployment bill’ that never once mentions small cells.

If you read between the lines–and it doesn’t take a powerful magnifying glass to do that–you’ll see (like we have) that this law will impact local Public Works agencies far more than Community Development Departments. Given, at least in our experience, that most California public works codes are lacking in wireless regulation, and especially in design standards for wireless facilities in the public rights of way, now is the time to update local PW codes.

Let’s do a preliminary section-by-section walk through the new law and see how it ‘works’ as written, but certainly not in practice. (Please note that TLF will be publishing a California-credit MCLE program at https://CLE.TLF.LAW in the near future that will deep dive into this law and how it may be implemented by local governments in California. Local government attorneys will have free access to that program…just send an email request to Jonathan.)

Note that SEC. 1 and SEC. 2 are the title and legislative ‘findings’, and not discussed here.

Now, on to the main event…

SEC. 3. Section 65964.3 is added to the Government Code, to read:

65964.3. (a) For purposes of this section, the following definitions apply:
(1) “Batch broadband permit processing” means the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit.

Note the word “simultaneous” used here. Many local governments will have to adjust their processing procedures to meet the shot clock requirements discussed below.

(2) “Broadband permit application” means an application or other documents submitted for review by a local agency to permit the construction of a broadband project.

It will be very helpful for a local agency to create a standalone permit application for batched broadband projects. TLF is developing one for use by our clients.

(3) “Broadband project” means the proposed facility, including the support structure and any supporting equipment necessary for operation of the proposed facility. A broadband project may be comprised of one or more components, including, but not limited to, a wireless facility, a fiber optic connection, and other supporting equipment, each of which may require separate permits or authorizations by a local agency.

The definition of “Broadband project” is quite important. It’s a soup-to-nuts, kitchen sink definition that includes poles, wires, cables, electronic equipment, antennas, vaults, pedestals, and more. Additionally, expect to see franchised cable TV operators and non-franchised fiber providers claim rights under AB 965.

(4) “Local agency” has the same meaning as the term is defined in Section 65964.5, except that it does not include a publicly owned electric utility that is subject to Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code.

Cal. Gov. Code 65964.5(a)(2) defines a local agency as meaning “a city, county, city and county, charter city, special district, or publicly owned utility” but as you see in AB 965, there is an exclusion fora  publicly owned electric utility that is subject to Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code.  Essentially, for public power utilities, it’s status quo ante.

(5) “Presumptively reasonable time” means the timeframe, if any, specified in applicable law within which a local agency must review and resolve an application following submission of a complete broadband permit application. The presumptively reasonable time period may be modified by mutual, written agreement between the local agency and the applicant.

Applicable law? Okay, remember that California largely adopts the FCC shot clocks with a few wrinkles. This law, like state law and federal regulations, allows for tolling of the shot clock but “mutual, written agreement”. As always, be very careful when executing a tolling agreement given the industry proclivity to include terms that are damaging to local agencies.

(6) “Substantially similar broadband project sites” means broadband project sites that are nearly identical in terms of equipment and general design, but not location.

Whew. When we talk about “nearly identical” are we talking about 95%? 97%? 99%? The law does not give us guidance, but we’ll get into this key term in our MCLE program covering this new law. The location exclusion makes sense since two “nearly identical” sites cannot occupy the same location…at least in the same dimension in 3D space…it’s a physics thing.

(b) Subject to subdivision (e), a local agency shall undertake batch broadband permit processing upon receiving two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant. Batch broadband permit processing for wireless broadband projects shall be completed within a presumptively reasonable time pursuant to applicable law unless a longer period of time is permitted under the circumstances pursuant to applicable law, including Section 1.6003 of Title 47 of the Code of Federal Regulations.

Something to consider is, ‘who is the applicant?’ In most cases, the actual applicant in fact will be a permitting contractor (e.g., MD7 or Complete Wireless, etc.) or a tower/builder company (i.e., Extenet or Crown Castle), and far less often the carriers directly (such as AT&T, T-Mobile, Dish, and Verizon). This is important because, for hypo purposes, if XY&T Wireless were to use several different firms to submit multiple sites, the applicants in fact would be different firms…even if they all represent XY&T.

(c) If a local agency does not approve broadband permit applications for substantially similar wireless broadband project sites submitted for batch broadband permit processing pursuant to this section and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time or a longer period permitted under applicable law, all of the permits shall be deemed approved pursuant to Section 65964.1.

Local government attorneys will have to look at ALL of the requirements of Gov. Code Sec. 65964.1(a) to understand additional provisions to actually trigger the ‘deemed approved’ remedy.   This will be covered in depth in our MCLE program on this new law.

(d) The Legislature finds and declares that batch broadband permitting processing will allow local governments to still receive permit fees, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide and more quickly connect communities to high-speed internet. This will allow the state to meet the federal broadband funding deadline of December 31, 2024, while creating greater broadband equity amongst communities so more individuals can have access to high-speed internet for emergency response, remote work, telehealth, education, and commerce.

Oddly, this subsection (d) seems to be a legislative finding, not an enforceable provision. Weird.

(e) The requirements of this section shall not apply to eligible facility requests, as defined and governed by Section 1455 of Title 47 of the United States Code.

This little gem is very important as it means that existing sites up for modification that would qualify for 6409(a) treatment are unlikely to be subject to this new law. A first step, then, for any application is to ask whether the site being requested actually exists, and if so to likely deny the application if it would otherwise fall into 6409(a) territory. Moreover, if a batched site up for modification does not have a legal existence (and, in our experience, a fair number don’t have a legal existence), then should the local government deny the entire batch? Again, we’ll deep dive on this in our MCLE program.

(f) (1) This section does not preclude a local agency from requiring compliance with any requirements relating to the design, construction, or location of broadband projects that the local agency is otherwise authorized to impose or enforce under applicable law, including, without limitation, any generally applicable health and safety requirements.

Yup, this is a biggie. Local design regulations (wait…your jurisdiction HAS local design regulations, right?) and code compliance are still very much alive and viable. You don’t? Now would be a very good time to look at a design RESOLUTION (not an ordinance) to fill in some obvious holes.

(2) If a broadband permit application is denied, the local agency shall notify the applicant in writing of the reasons for the denial.

Good practice is to independently list every reason for a denial  but remember not to run afoul of the FCC’s  preemption of RF emissions standards. While it’s possible to deny a site for RF non-compliance, you’ll have to make sure you have the backup to make that finding and to make it stick. The section immediately prior makes clear that local governments can (and I assure you they should) ask for and carefully review RF compliance documentation for every new and modified site.

(g) The provisions of this section shall not apply to poles located within the limits of the City and County of San Francisco, if the poles are used for the primary purpose of operating San Francisco Municipal Transportation Agency public transit vehicles.

This provision in this new law doesn’t take SF Muni poles out of the siting equation…it only makes them subject to a different process. Good work by CCSF here!

(h) Nothing in this section shall supersede, nullify, or otherwise alter the requirements to comply with safety standards, including, but not limited to, both of the following:
(1) Article 2 (commencing with Section 4216) of Chapter 3.1 of Division 5 of Title 1.
(2) The Public Utilities Commission’s General Order No. 128, Rules for Construction of Underground Electric Supply and Communication Systems, or successor rules adopted by the commission.

Okay, let’s break this apart a bit. Section 4216 is the code that sets statewide standards for digging, and DigAlert. CPUC GO 128 governs underground utility construction in California. Oddly, nothing is referenced here to CPUC General Order 95.  GO 95 controls and sets safety standards for overhead utility construction here in California. That’s omission is okay, however, since subsection (f)(1) of this new law above makes clear that a local government maintains its enforcement authority for “generally applicable health and safety requirements” and that certainly includes CPUC GO 95.

(i) (1) A local agency may place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing.

Well, what’s reasonable? I’m glad you asked because, well, its not the local agency that sets the minimum ‘reasonable limits’…

(2) A reasonable limit imposed pursuant to paragraph (1) shall be no less than either of the following:
(A) For a city with a population of fewer than 50,000 or a county with a population of fewer than 150,000, including each city within that county, 25 project sites.
(B) For a city or county with a population greater than the applicable population described in subparagraph (A), 50 project sites.

I’m fairly sure a lot over smaller jurisdictions will claim, rightly, that 25 batched application sites requiring the expediting of decisions or face a deemed approved remedy will disagree with the definition of “reasonable limit”.

(3) A local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the applicant or to expedite the approval of other substantially similar broadband project sites.

Subsection 3 is a double edged sword if I ever saw one.  First, the applicant determines whether a site can be removed from a batched application if requested by the local jurisdiction. Second, a jurisdiction appears able to remove an application on its own if it determines that the removal will expedite the approval of other sites in same batch. (Note the use of the ‘or’ connector in this section.)  Why might a local government not want to remove a non-qualifying site (or two or three or however as might be required) from a batch? Good question…but likely a complex answer.

(j) A local agency may impose a fee on batch broadband permitting processing consistent with Section 50030. Where limited resources affect a local agency’s ability to process applications for a broadband project, including batched applications, a local agency shall work with the applicant in good faith to resolve those resource limitations, which may include, but is not limited to, provision by the applicant of supplemental resources.

Cal Gov Code Section 50030 says that as to telecom facilities constructed by a telephone corporation that has obtained all required authorizations to provide telecommunications services from the Public Utilities Commission and the Federal Communications Commission, local governments permit fees “shall not exceed the reasonable costs of providing the service for which the fee is charged and shall not be levied for general revenue purposes”. Okay, no biggie there. It looks like the law adds a new layer of a good faith negotiation to add resources to expedite batched permit processing, and that the applicant will then have to provide “supplement resources”. This is not new, as a fair number of local governments have, in some cases for decades, retained outside trusted consultants to back fill where the local staff doesn’t have the knowledge or handling capacity to timely move applications through the process. What the industry is likely to claim is that THEY get to pick the consultants that a local government can use to provide that back fill. A more logical and consistent reading will be that if a local government needs help, and has a qualified consultant, the local government will be responsible for picking its advisor, and billing that cost through (without adding any pure profit for the general fund) to the applicant.

SEC. 4. The Legislature finds and declares that the efficient approval of broadband permit applications is critical to the deployment of broadband services, is a matter of statewide concern, and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Section 3 of this act adding Section 65964.3 to the Government Code applies to all cities, including charter cities.

This is a common provision that moves the issue to this statewide ‘solution’.

SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.

Finally, because the law provides that local governments can charge the cost (including outside help) on the applicant to process these batched applications, no state reimbursement is needed.

Okay, that’s it for this first look, and my options about this new law.

Remember that TLF will be producing and making available a deeper dive review into this new law. That MCLE credit program will be available at no charge to local government attorneys…and, heck, to local government planners as well.

-Jonathan

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"We've been trying to reach you about your car's extended warranty..."

“We’ve been trying to reach you about your car’s extended warranty…”

Posted on by Dr. Jonathan L. Kramer

Today the FCC issued a fine just a few bucks short of a $300,000,000 against a group of scammers penetrating the extended car warranty scam.

The FCC’s identified perps are:

Sumco Panama SA,
Sumco Panama USA,
Virtual Telecom kft,
Virtual Telecom Inc.,
Davis Telecom Inc.,
Geist Telecom LLC,
Fugle Telecom LLC,
Tech Direct LLC,
Mobi Telecom LLC, and
Posting Express Inc.

The 27 page FORFEITURE ORDER reads like a who-done-it crime novel.

The fine is applicable jointly and severally so that anyone that the DOJ can tap for ANY OR ALL of the fine sum will get tapped.

I wonder how their extended forfeiture warranty coverage is doing, these days.

For an interesting read, you can OPEN THE ORDER BY CLICKING HERE. *Ioens new window.)

Jonathan

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Sophie Geguchadze is TLF’s newest Senior Associate

Posted on by Dr. Jonathan L. Kramer

Sophie Geguchadze is now a Senior Associate at Telecom Law Firm, P.C. and I’m very happy about that.

I first met Sophie when she attended a wireless industry meeting in Washington State in very early 2000.  COVID had just taken an early foothold in the Pacific Northwest but little did we know how that would impact us.  After my presentation to the wireless industry on behalf of our government clients, Sophie approached me to dig deeper into my decidedly non-industry views.  We corresponded over a period of eight months, when Tripp May and I offered her a position at the firm.

Why the offer?

Sophie impressed us as a practical and pragmatic attorney and negotiator who, unlike most wireless industry lawyers, DOES have a technology base to understand both the law and the technology that drives law issues.  She made it clear that she was interested in solving problems rather than ‘lawyering up’ a case or matter.  That’s just what we look for in an new associate.

Tripp and I hired Sophie to start in November, 2020 and she provided to be everything we hoped for, and more.  Our clients reward our decision by sending us very kind and thoughtful emails about Sophie’s work on their behalf.  No surprise there given her natural skips and acquired expertise.

In the past few years, Sophie has worked on wireless leasing, cable franchising, fiber optics agreements, and much more.

We’re glad to have Sophie on our bench.

-JonathanFacebooktwitterredditpinterestlinkedinmail

Dr. Jonathan Kramer to present at the AGL Summit on April 8, 2021

Posted on by Dr. Jonathan L. Kramer

TLF’s Founder and Senior Partner, Dr. Jonathan Kramer will be speaking at the AGL Summit to be held online on April 8, 2021.  He is slated to be a panelist on the “Microtrends for Small Cells in 2021” panel.  Jonathan will provide a municipal view of small cell siting.  Registration is free.

For details and registration information please click here on on the image below.

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California: Every Municipal Light and Traffic Pole a Cell Site Candidate?

Posted on by Dr. Jonathan L. Kramer

California Senator Bill Dodd (D., 3rd) has proposed legislation to make every municipally-owned street light and traffic signal a potential cell site, removing nearly all of the discretion California local governments have to decide whether they even want cell sites on their municipally-owned poles.

SB556, Senator Dodd’s Bill, if enacted, would extend existing state law impacting government-owned utilities to every City and County in this state.  Then, the proposed law would further extend the existing legislation to make it mandatory that cities and counties (yes, and towns, too) would be required to make every government owned street light and traffic signal available for use by cell phone operators.  The fees that a local government can charge for this imposed-occupancy are only those related to the cost to allow the attachment (one time) and then only reimbursement for the actual costs of the As a bit of icing on the cake, arguably the wireless operator can force the local government to rearrange the light on a street light, or the traffic control lights on a traffic signal to accommodate the cell site.

The law as propose is shown below.  Below that is the map of Senator Dodd’s District and his contact information.  Let him know if you like what he’s proposing…or if you don’t like it!

The heading of Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code is amended to read:

PART 2. Street Light Poles, Traffic Signal Poles, Utility Poles, and Support Structures

SEC. 3.

Section 9510 of the Public Utilities Code is amended to read:

9510.

 (a) The Legislature finds and declares that in order  that,  to promote wireline and wireless broadband access and adoption, it is in the interest of the state to ensure that local governments and local  publicly owned electric utilities, including irrigation districts, that own or control utility poles street light poles, traffic signal poles, utility poles,  and support structures, including ducts and conduits, as applicable,  make available appropriate space and capacity on and in those structures to cable television corporations, video service providers, and telephone corporations under reasonable rates, terms, and conditions.
(b) The Legislature further finds and declares that the oversight of fees and other requirements imposed by local publicly owned electric utilities or local governments  as a condition of providing the space or capacity described in subdivision (a) is a matter of statewide interest and concern. Therefore, it is the intent of the Legislature that this part supersedes all conflicting local laws and this part shall apply in charter cities.
(c) The Legislature further finds and declares that local publicly owned electric utilities and local governments  should provide access to utility poles and support structures with a recovery of  street light poles, traffic signal poles, utility poles, and support structures, as applicable, with nondiscriminatory fees that allow for the recovery of reasonable  actual costs without subsidizing for-profit cable television corporations, video service providers, and telephone corporations.

SECTION 1.SEC. 4.

Section 9510.5 of the Public Utilities Code is amended to read:
9510.5.

As used in this part, the following terms have the following meanings:

(a) “Communications service provider” means a cable television corporation, video service provider, or telephone corporation.
(b) “Governing body” means the governing body of a local government or local  publicly owned electric utility, including, where applicable, a board appointed by a city council.
(c) “Local government” means a city, including a charter city, county, or city and county.
(c) (d)  “Street light pole” means a pole, arm, or fixture used primarily for street, pedestrian, or security lighting.
(e) “Traffic signal pole” means a pole, arm, or fixture used primarily for signaling traffic flow.
(d) (f)  “Utility pole” means an electricity  electrical pole, electrical transmission tower,  or telephone pole, but does not include a street light pole or an electricity electrical  pole used solely for the transmission of electricity at 50 kilovolts or higher and not intended for distribution of communications signals or electricity at lower voltages.

SEC. 5.

Section 9511 of the Public Utilities Code is amended to read:
9511.

(a) (1) (A) A local publicly owned electric utility shall make appropriate space and capacity on and in a street light pole, traffic signal pole, utility pole, and support structure owned or controlled by the local publicly owned electric utility available for use by a communications service provider pursuant to reasonable terms and conditions.

(a) (B)  A local publicly owned electric utility shall make appropriate space and capacity on and in a utility pole and support structure owned or controlled by the local publicly owned electric utility available for use by a communications service provider pursuant to reasonable terms and conditions.  Rates, terms, and conditions that are specified in a contract executed with a local publicly owned electric utility  before January 1, 2012, shall remain valid until the contract, rate, term, or condition expires or is terminated according to its terms by one of the parties. If an annual fee is included in a contract executed before January 1, 2012, but the amount of the fee is left unspecified, the requirements of Section 9512 apply.
(2) (A) A local government shall make appropriate space and capacity on and in a street light pole, traffic signal pole, and support structure owned or controlled by the local government available for use by a communications service provider pursuant to reasonable terms and conditions.
(B) Unless the communications service provider and local government otherwise agree, if the contractual rates exceed two hundred seventy dollars ($270) per year per pole, the rates, terms, and conditions that are specified in a contract executed before January 14, 2019, shall remain valid only for wireless equipment that has already been attached to a pole by a communications service provider before January 1, 2022, and only until the contract, rate, term, or condition expires or is terminated according to its terms by one of the parties.
(b) (1) A local publicly owned electric utility or a local government  shall respond to a request for use by a communications service provider of a utility pole or support structure  street light pole, traffic signal pole, utility pole, or support structure, as applicable,  owned or controlled by the local publicly owned electric utility or local government  within 45 days of the date of receipt of the request, or 60 days if the request is to attach to over 300 poles. If the request is denied, the local publicly owned electric utility or local government  shall provide in the response the reason for the denial and the remedy to gain access to the utility pole street light pole, traffic signal pole, utility pole,  or support structure. If a request to attach is accepted, the local publicly owned electric utility,  utility or local government,  within 14 days after acceptance of the request, shall provide a nondiscriminatory  cost estimate, based on actual cost,  reasonable actual cost, as described in the Federal Communications Commission’s Declaratory Ruling on Wireless Broadband Deployment (FCC 18-133, 33 FCC Rcd 9088 (2018)),  for any necessary make-ready work required to accommodate the attachment. The requesting party shall accept or reject the make-ready cost estimate within 14 days. Within 60 days of acceptance of the cost estimate, the local publicly owned electric utility or local government  shall notify any existing third-party attachers that make-ready work for a new attacher needs to be performed. The requesting party shall have the responsibility to coordinate with third-party existing attachers for make-ready work to be completed. All parties shall complete all make-ready work within 60 days of the notice, or within 105 days in the case of a request to attach to over 300 poles. The local publicly owned electric utility or local government  may complete make-ready work without the consent of the existing attachers, if the existing attachers fail to move their attachments by the end of the make-ready timeline requirements specified in this paragraph.
(2) The timelines described in paragraph (1) may be extended under special circumstances upon agreement of the local publicly owned electric utility or local government  and the communications service provider.
(c) A  Unless the communication service provider agrees to replace the street light pole, traffic signal pole, utility pole, or support structure, a  local publicly owned electric utility or local government  may deny an application for use of a utility pole or support structure  street light pole, traffic signal pole, utility pole, or support structure, as applicable,  because of insufficient capacity or safety, reliability, or engineering concerns. In denying an application, a local publicly owned electric utility or local government  may also take into account the manner in which a request from a communications service provider under this part could impact an approved project for future use by the local publicly owned electric utility of its  or the local government of its street light poles, traffic signal poles,  utility poles or support structures for delivery of its core utility or municipal  service.
(d) This part does not limit the authority of a local publicly owned electric utility or local government  to ensure compliance with all applicable provisions of law in determining whether to approve or disapprove use of a utility pole or support structure.  street light pole, traffic signal pole, utility pole, or support structure, as applicable.

SEC. 6.

Section 9511.5 of the Public Utilities Code is amended to read:
9511.5.

 (a) If a  A  local publicly owned electric utility or local government that  has the authority pursuant to other law to impose a fee to provide the use described in Section 9511, that fee shall be adopted and levied  9511 shall adopt and levy only the fee described in Section 9511,  consistent with the requirements of this part.
(b) The governing body of the local publicly owned electric utility or a local government  shall determine the fee pursuant to Section 9512.
(c) This part does not grant additional authority to a local publicly owned electric utility or local government  to impose a fee that is not otherwise authorized by law.

SEC. 7.

Section 9512 of the Public Utilities Code is amended to read:
9512.

 (a) (1) An annual fee charged by a local publicly owned electric utility or a local government  for the use of a utility pole  street light pole, traffic signal pole, or utility pole, as applicable,  by a communications service provider shall  for an attachment shall be imposed pursuant to reasonable terms and conditions, and shall  not exceed an amount determined by multiplying the percentage of the total usable space that would be occupied by the attachment by the annual costs of ownership of the pole and its supporting anchor. As used in this paragraph and paragraph (2), “usable space” means the space above the minimum grade level that can be used for the attachment of wires, cables, and associated equipment. It shall be presumed, subject to factual rebuttal, that a single attachment occupies one foot of usable space and that an average street light pole, traffic signal pole, or  utility pole contains 13.5 feet of usable space.
(2) An annual fee charged by a local publicly owned electric utility or local government  for use of a support structure by a communications service provider shall not exceed the local publicly owned electric utility’s or local government’s  annual costs of ownership of the percentage of the volume of the capacity of the structure rendered unusable by the equipment of the communications service provider.
(3) As used in this subdivision, the “annual costs of ownership” is the sum of the annual capital costs and annual operation costs of the pole  street light pole, traffic signal pole, utility pole,  or support structure, which shall be the average costs of all similar utility poles street light poles, traffic signal poles, utility poles,  or structures owned or controlled by the local publicly owned electric utility.  utility or local government.  The basis for the computation of annual capital costs shall be historical capital costs less depreciation. The accounting upon which the historical capital costs are determined shall include a credit for all reimbursed capital costs. Depreciation shall be based upon the average service life of the utility pole street light pole, traffic signal pole, utility pole,  or support structure. “Annual cost of ownership” does not include costs for any property not necessary for use by the communications service provider.
(b) (1) A local publicly owned electric utility or local government  shall not levy a fee that exceeds the estimated amount required to provide use of the utility pole or support structure  street light pole, traffic signal pole, utility pole, or support structure, as applicable,  for which the annual recurring fee is levied. If the fee creates revenues in excess of actual costs, those revenues shall be used to reduce the fee.
(2) A local publicly owned electric utility or local government establishes a rebuttable presumption that its fees are based on reasonable actual costs if they conform to the presumptively reasonable fees set forth in the Federal Communications Commission’s Declaratory Ruling on Wireless Broadband Deployment (FCC 18-133, 33 FCC Rcd 9088 (2018)).
(c) A jointly owned pole is not included within the requirements of this section, if a joint owner other than the local publicly owned electric utility or local government  has control of access to the space that would be used by the communications service provider.

SEC. 8.

Section 9513 of the Public Utilities Code is amended to read:
9513.

 (a) A local publicly owned electric utility or local government  may require an additional one-time charge equal to three years of the annual fee described in Section 9512, for attachments reasonably shown to have been made without authorization that are discovered on or after January 1, 2012.
(b) A local publicly owned electric utility or local government  may remove an attachment made without authorization, if all of the following conditions are met:
(1) The owner of the attachment fails to pay the charge described in subdivision (a), if that charge is applicable.
(2) The owner of the attachment does not seek approval to attach pursuant to this part within a reasonable period of time.
(3) The owner of the attachment does not contest that the attachment was made without authorization.
(c) An attachment of a service drop wire is not made without authorization for the purposes of this section, if the owner of the attachment seeks approval to attach pursuant to this part within 45 days of the attachment.

SEC. 9.

Section 9514 of the Public Utilities Code is amended to read:
9514.

 Nothing in this  This  part shall not  be construed to prohibit a local publicly owned electric utility or local government  from requiring a one-time fee to process a request for attachment, if the one-time fee does not exceed the actual cost of processing the request.

SEC. 10.

Section 9514.5 is added to the Public Utilities Code, to read:
9514.5.

 This part does not prohibit a wireless service provider and a local government from mutually agreeing to a rate, charge, term, or condition that is different from that provided in this part. Either party may withdraw from a negotiation for an agreement upon written notice to the other party.

SEC. 11.

Section 9515 of the Public Utilities Code is amended to read:
9515.

 (a) In the event that it becomes necessary for the local publicly owned electric utility or local government  to use space or capacity on or in a support structure occupied by the communications service provider’s equipment, the communications service provider shall either pay all costs for rearrangements necessary to maintain the pole attachment or remove its equipment at its own expense.
(b) (1) If the communications service provider requests a rearrangement of the utility pole or support structure,  a street light pole, traffic signal pole, utility pole, or support structure of a local publicly owned electric utility,  and the local publicly owned electric utility has the authority to levy fees as described in Section 9511.5, the local publicly owned electric utility may charge a one-time reimbursement fee for the actual costs incurred for the rearrangement.
(2) If the communication service provider requests a rearrangement of a street light pole, traffic signal pole, or supporting structure of a local government, the local government may charge a one-time reimbursement fee for the actual costs incurred for the rearrangement.
SEC. 12.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.

Below is the District Map for Sen. Dodd.  If you have comments about his proposed legislation his contact information is below the map.

Online contact form:  https://sd03.senate.ca.gov/contact

 

Capitol Office
State Capitol, Room 2082
Sacramento,  CA  95814
Phone:  (916) 651-4003
Fax:  (916) 651-4903

Vacaville Office
555 Mason St., Ste 275
Vacaville, CA 95688
Phone: (707) 454-3808
Fax: (707) 454-3811

Napa Office
2721 Napa Valley Corporate Dr.,
Napa,  CA  94558
Phone:  (707) 224-1990
Fax:  (707) 224-1992

Santa Rosa Office
50 D St., Ste 300
Santa Rosa, CA 95404
Phone: (707) 576-2093
Fax:  (707) 576-2095

Vallejo Office
420 Virginia St., Ste 1C
Vallejo, CA 94590
Phone: (707) 551-2389
Fax: (707) 551-2390

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Dr. Jonathan Kramer, California Real Estate Broker

Posted on by Dr. Jonathan L. Kramer

Yesterday (February 27, 2021), I took and passed the California Department of Real Estate Broker examination. I am now licensed as a real estate broker in this state, and my license (No. 00698460) is now active. Securing this license has been a goal of mine for a number of years, and I have been a verifier of experience for three other licensees over the years (including two currently working at TelecomLawFirm.com).

Am I going to transition from being a telecom attorney to real estate?

Nope, but you should expect to see me expand in to real estate transactions going forward.

JonathanFacebooktwitterredditpinterestlinkedinmail

Cell Site Landlords: When is an Entry also an Exit?

Posted on by Dr. Jonathan L. Kramer

Electronic direct deposits of monthly or annual cell site rent payments into a landlord’s bank account is a common enough practice.

Direct deposits saves the tenant the payment-related costs of:

  1. printing the check,
  2. getting it to and from the signer (if hand signed),
  3. putting the check in an envelope,
  4. running the envelope through the postage machine;
  5. getting the stamped envelope in the outgoing mail tray;
  6. getting the mail tray to the pick-up point or post office.

For the landlord, electronic payments are quick and relatively easy:

  1. You look online or check your statement to see whether the check hit, and when, and log that into your receivables as a payment.

So far, so good, but there’s a real stinker lurking. Read on…

Electronic payments are commonly describe in the lease agreement and commonly involve the landlord executing and sending the tower company a one-page form, often titled something like: “Electronic Payment Authorization” or “Direct Deposit Form”.

The authorization form will contain some legally-operative language, such as the language shown here:  “By signing below, I authorize [the tower company] to make entries to my account at the financial institution indicated on the attached voided check.”

All goes well for a while, and the deposits go in mostly on time.

But then something happens…the tenant and the landlord get sideways over some payment made by the tenant to the landlord, and suddenly there is a WITHDRAWAL from the landlord’s bank account for the amount disputed by the tenant.  Poof.  The money is gone.

Huh? How can that occur?  The landlord says that the direct deposit form was for, well, deposits.

The landlord contacts the bank and says, ‘Huh? What’s this withdrawal by my cell site tenant?!  I NEVER authorized it!!  You, my bank, has to fix this and put the money back into my account!”

The landlord’s banker looks through the account records, finds the electronic withdrawal, then goes into the account signature documents.  The call back  from the banker to to the landlord goes something like this: ‘Sorry, but you authorized your tenant to make account withdrawals.’  Then the banker tells the landlord to look at the clear and unambiguous words in the Direct Deposit Form signed so long ago and forgotten by the landlord.

Sadly for the landlord, the legally-operative words said something quite different from what the landlord understood: “By signing below, I authorize [the tower company] to make entries to my account at the financial institution indicated on the attached voided check.” (Emphasis added.)

Don’t think that an “entry” is a deposit…think about it like in accounting. An account entry can be–and in the case of monthly rent–is a deposit (called a credit in accounting talk).  But also in accounting, an account entry can be a debit (or a withdrawal).

By allowing the tenant to make “account entries” the landlord gave the keys of the account to the tenant.

Not such a hot idea, and one that in the hypothetical case above, would likely force the lawyers to get involved.

Conclusion?  Direct deposits are most often a very good thing.  Account entries? Well … not so much.  Words have legally-effective meanings, even on a simple form seemingly so straight forward and clear.  Fixing the particular problem shown in the example here, which used real words from a signed document we reviewed, is easy once you understand the issue and know how to resolve it to protect the landlord.

When in doubt, and most often even if you’re not, it usually pays to reach out to an attorney who has a practice related to your issue.  As the old Ben Franklin quote starts, “A stitch in time…”

Jonathan

 

 

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