19 Words Can Cost a Wireless Landlord $1Million

Wireless landlords beware:

If you see your wireless tenant trying insert a sentence in the lease or an amendment along the lines of “Landlord agrees to grant additional space to Tenant for radio frequency signage and barricades if required by Applicable Law” know that if you agree you’re likely giving up tens of thousand, hundreds of thousands, or even over $1,000,000 in lease revenue over 30 years.

Why?

Because when a wireless carrier needs to install barriers, or otherwise exert control over portion of your building (likely the roof) if required by Applicable Law then the landlord should rent that space, not just “grant” (give) it to the tenant.  We’ve been dealing with more and more issues like this recently, and recovering substantial additional rent for our clients.

Words count.

Understanding what the words mean counts.

Understanding how the words can be so simple, yet so negative, count.

Beware and be aware.

Jonathan

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Sprint/T-Mobile “Landlord Release Agreement” Trap?

We’re seeing Sprint sending some landlords a “Landlord Release Agreement” in connection with Dish Wireless that contains:

Release. Effective as of the Assignment Date, Landlord, for Itself and its affiliates, successors and assigns, does hereby forever release and discharge Tenant and its affiliates, partners,
employees, agents, successors and assigns of any and all liabilities and obligations arising from or relating to the Lease from and after the Assignment Date.

Most savvy cell site landlords will recognize the inherent danger to their lease security by agreeing to this little stinker clause.

If you receive any sort of release agreement from a wireless carrier (either directly or via one of their agents), take the time before you sign to get a qualified legal opinion regarding the terms of that agreement.  In some or many cases, the true benefit flows solely to the exiting carrier, not to the landlord!

Jonathan

 

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Verizon sues Rochester NY over attachment, tench, overhead fees

Verizon has sued the City of Rochester, NY in federal court claiming that Rochester’s fees for attachments, trenching, overhead, etc. exceed the FCC’s presumptive caps, and therefore sink to a prohibition of service.

How silly. How very silly.

I suspect this little law suit will go exactly nowhere while the big show is playing out in the 9th Circuit Court of Appeals. The Verizon law suit against Rochester turns on the outcome of the main 9th Circuit case.  The 9th Circuit case is where local governments around the country are suing to set aside the FCC’s Small Wireless Facility Order. It’s that Order that Verizon cites as the basis for its suit against Rochester.

I will not be surprised one bit when the judge in the Rochester case puts the brakes on that case to await the outcome of the 9th Circuit case.

Here’s Verizon’s complaint:

VZ-Rochester-Complaint-8.8.19

Jonathan

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Professional Engineers Stamping Wireless Plans Without Actual Knowledge Will Be Caught

It continues to amaze me, and sadden me, how some professional engineers seem to be willing to put their hard-earned licenses on the line so often, and so obviously.

When a professional engineer stamps and seals plans that unambiguously show that the wireless site as built will violate ADA clearances, then we know the PE failed to protect the public.  When PEs stamp plans that will result in inverse condemnations, we know the same thing. There are other ‘tells’ we look for when reviewing wireless project applications for our clients.  Those tells allow us to identify the PEs we suspect are no more than a mere stamp mills, most likely being paid per project stamped.

Wink, Wink, shall we?

I recently sat in a government meeting reviewing a proposed small wireless facility where, when pressed, the entitlement rep conceded that the PE who stamped the plans probably never visited the site and likely had no personal knowledge about the measurements and elements shown on the plans sealed by that PE.

Really?

This dangerous and probably unlawful ‘public-be-dammed, all wireless siting ahead‘ mentality will come back to haunt those PEs when they find themselves referred to state PE licensing boards by local governments for prosecution.

The PEs won’t be the only ones referred to state boards.

Along with the PEs are likely to be entitlement companies that hire them, and potentially the wireless carriers who hire the entitlement firms.

To be crystal clear, there are true Professional Engineers out there who care about what they do, care for the quality of their work, and respect the public interests they serve.  It doesn’t take a rocket scientist to figure out who those true PEs are…their work speaks for them.  Those honorable and thoughtful PEs clearly do actual engineering reviews before sealing plans, and I suspect some of them have ended up on a  ‘naughty list’ for not being willing to waive the public interests they are committed to serving.

Jonathan

 

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City of Berkeley Wins (Again) in CTIA RF Warnings Law Suit

Yesterday, the 9th Circuit ruled (again) in favor of the City of Berkeley in CTIA’s law suit regarding the City’s requirement that cell phone vendors alert purchasers to FCC-required RF warnings.

The City of Berkeley requires in its current Municipal Code the following:

9.96.030 Required notice

A.    A Cell phone retailer shall provide to each customer who buys or leases a Cell phone a notice containing the following language:

The City of Berkeley requires that you be provided the following notice:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.

B.    The notice required by this Section shall either be provided to each customer who buys or leases a Cell phone or shall be prominently displayed at any point of sale where Cell phones are purchased or leased. If provided to the customer, the notice shall include the City’s logo, shall be printed on paper that is no less than 5 inches by 8 inches in size, and shall be printed in no smaller than a 18-point font. The paper on which the notice is printed may contain other information in the discretion of the Cell phone retailer, as long as that information is distinct from the notice language required by subdivision (A) of this Section. If prominently displayed at a point of sale, the notice shall include the City’s logo, be printed on a poster no less than 8-1/2 by 11 inches in size, and shall be printed in no small than a 28-point font. The City shall make its logo available to be incorporated in such notices.

C.    A Cell phone retailer that believes the notice language required by subdivision (A) of this Section is not factually applicable to a Cell phone model that retailer offers for sale or lease may request permission to not provide the notice required by this Section in connection with sales or leases of that model of Cell phone. Such permission shall not be unreasonably withheld. (Ord. 7443-NS § 1, 2015; Ord. 7404-NS § 1 (part), 2015)

The CTIA challenged the current law saying, essentially, that the City was forcing wireless providers to ‘speak’ thus violating their First Amendment rights.  The District Court hearing the case denied CTIA’s request to bar the City from enforcing its RF disclosure rules.  The CTIA appealed to the 9th Circuit.

In its original decision on CTIA’s appeal, a 3-judge panel of the 9th Circuit disagreed with CTIA and allowed the ordinance to remain in force.  The CTIA then asked the Supreme Court to review the 9th Circuit decision.

The Supreme Court took the case, vacated the 9th Circuit decision supporting the City, and remanded the case back to the 9th Circuit directing that the Circuit Court reevaluate the decision in light of the Supreme Court’s holding in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361, 201 L. Ed. 2d 835 (2018) (“NIFLA”).

The NIFLA case challenged a California law requiring compelled speech by anti-abortion counseling centers that included references to abortion clinics.  In a 5-4 decision, the Supreme Court overturned the California law citing a violation of the First Amendment.

NIFLA connects to CTIA by way of the Supreme Court’s analysis in NIFLA that said that a lower level of First Amendment protection exists for noncontroversial professional speech.  In NIFLA, the majority in the Supreme Court said,

[O]ur precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985); Milavetz, Gallop & Milavetz, P. A. v. United States, 559 U. S. 229, 250 (2010); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455–456 (1978).

According, the Supreme Court’s remand to the 9th Circuit required that the Circuit Court evaluate whether the City’s RF notice was factual, noncontroversial information.

In the case re-decided yesterday in favor of Berkeley, the majority said:

Given the FCC’s requirement that cell phone manufacturers must inform consumers of “minimum test separation distance requirements,” and must “clearly disclose[ ]” accessory operating configurations “through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided,” we see little likelihood of success based on conflict preemption.

Berkeley’s compelled disclosure does no more than alert consumers to the safety disclosures that the FCC requires, and direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.

Yesterday’s decision cited existing disclosures in the FCC Record, as well as cell phone manufacturer warnings.

On remand, the 9th Circuit found that Berkeley’s RF law as non-controversial under the Supreme Court’s holding in NIFLA.  A dissent by Circuit Judge Friedland takes the opposite position.

The decision and dissent are provided in this link: CTIA v Berkeley. Case No. 16-15141

It seems likely that there will be another petition by the CTIA to review yesterday’s decision.

Jonathan

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Mobilitie: Fake News; FCC Fines; and Churchill’s Barking Dog.

Mr. Jason Caliento, the Executive Vice President of Network Strategy at Mobilitie, presented the keynote address and a follow-up discussion at the AGL Summit on September 27, 2018. That Summit was held in Kansas City as an ongoing part of AGL’s (very important for municipal officials and industry personnel alike) lecture series.

I spoke at the AGL Summit on a 5G topic, but that’s not the focus of this post.

Mr. Jason Caliento (left) with Mr. Bryan Tramont.  Photo  Copyright © 2018 by Dr. Jonathan Kramer

The focus of this post is a snippet of about 2 minutes and 40 seconds of the one-on-one follow-up discussion with Mr. Bryan Tramont, Esq., the Managing Partner of Wilkinson Baker Knauer, LLP. The subject of that portion of their exchange was the 2018 Consent Decree between the FCC, Sprint, and Mobilitie. That Decree was adopted and released on April 10, 2018. (CLICK HERE to download and read the Consent Decree.)

In their relatively short exchange, Mr. Caliento managed to claim that there was some sort of ‘fake news’ involvement in the story about Sprint and Mobilitie violating the FCC’s rules; that the ends justified the means; and that Mr. Caliento seems guided by Sir Winston Churchill’s quote, “You will never reach your destination if you stop and throw stones at every dog that barks.” I suppose an apparently intentional program between Mobilitie and Sprint to build sites absent required regulatory permissions is the barking dog in his odd analogy.

Please listen to Mr. Caliento’s comments responding to Mr. Tramont on this topic in its entity.  Then you may decide for yourself what you think of Mobilitie’s and Sprint’s (presumably and hopefully former) approach to regulatory compliance:

Okay. I suppose that’s one way to spin intentionally violating federal regulations because the ends seem to justify Mobilitie’s and Sprint’s means. Further, as for the ends justifying the means, apparently paying the FCC an $11 million dollar fine seems a very small and economical price to Mobilitie and Sprint given the billions Mr. Caliento claims that they have saved (and presumably will save).

I opine that now we know the real fake news.

Jonathan

PS: The next AGL Summit is in Atlanta, Georgia on November 8th. Unfortunately, I won’t be able to attend, but I highly recommend this event to municipal officials who want the real story about what’s happening in the coming 5G world. -jlk

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Most Favored Wireless Lessee Clause?

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

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

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

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

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

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

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

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

What’s a landlord to do?

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

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

wait for it… wait for it…

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

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

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

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

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

Jonathan

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

 

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Sprint Uses My Photo of Mobilitie to Promote Small Cells

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


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

Of course not.

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

I suspect not.

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

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

jlk

 

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How a Key Mobilitie Graphic Spins a Not-so-Tall Tale

This post is part of my contribution to the ongoing public policy debate and discussions regarding the current Mobilitie build for Sprint.  Mobilitie has developed the illustration shown in Figure 1, below, apparently as a way to show local governments and the public Mobilitie’s various pole configurations in at least block form.  Most recently, a week ago, Mobilitie presented this very illustration to a group of local government telecom officials in Southern California at the SCAN NATOA meeting. I attended that meeting.

Take a close look at Figure 1 and then please continue to read on.Mobilitie's unscaled graphic misrepresents the relative heights of their various poles.Figure 1.  Illustration created by Mobilitie. This illustration is presumably copyright by Mobilitie.  Used here under the Fair Use Doctrine.

The problem with Mobilitie’s illustration in Figure 1 is that it grossly misrepresents and under-represents the scale and impact of their proposed facilities.  Mobilitie’s illustration has no indicated scale, and the pole elements are not scaled to each other.  Mobilitie’s illustration is, in my opinion, deceptive and misleading.

I have taken Mobilitie’s illustration and through the magic of Photoshop scaled the poles to each other.  I started with the reasonable assumption that the light standard and equipment/antenna configuration topped out at about 34 feet above ground level. In Figure 2, below, that’s the pole on the left.  Then, knowing that Mobilitie has been promoting 75 foot tall wood utility poles in various communities around the country, I scaled the middle pole in Figure 2 to be approximately 75 feet above ground level.  Finally, I scaled the transmission pole on the right hand side of the illustration to be about 120 feet tall, which is the height that Mobilitie promotes around the country for theses tallest poles.  Here is Figure 2:

Mobilitie's graphic scales to show the relative heights of their various poles.Figure 2.  Illustration created by Mobilitie, which has been annotated and scaled by Dr. Jonathan L. Kramer. This illustration is a derivative of an illustration presumably copyright by Mobilitie.  Created and used here under the Fair Use Doctrine.

As you can see from Figure 2, which is now scaled against the street light pole, the height impacts of the utility and transmission poles are substantially greater than one would expect simply relying on Mobilitie’s illustration.   Also, it is my opinion, based on Mobilitie plans I have seen and reports I have reviewed that the widths of all three poles is misrepresented in Mobilitie’s illustrations.  I have not tried to account for those width errors in this analysis, and leave that task for the reader.

Finally, in Figure 3 below, I have prepared an animated graphic that will help to better frame Mobilitie’s illustration against the reality of Mobilitie’s plans.  You may want to download this to better see it on your screen.

Animated graphic showing Mobilitie's unscaled illustration of its pole configurations and a vertically-scaled graphic.Figure 3. Illustration created by Mobilitie, which has been annotated, scaled, and animated by Dr. Jonathan L. Kramer. This illustration is a derivative of an illustration presumably copyright by Mobilitie.  Created and used here under the Fair Use Doctrine.

What is the point of all of this? In my mind, the key point is that local governments and their constituents have a fair right to demand a reasonable level of accuracy when asked to consider projects that will impact their communities.  I believe that Mobilitie’s graphic in Figure 1, regardless whatever their intent in presenting it, ends up being quite deceptive by its lack of internal and external scales both for height and width.

If you would like to download Mobilitie’s entire PowerPoint presented last week, click here.

Finally, given the national importance of the ongoing public discussion regarding Mobilitie’s nationwide project for Sprint (and maybe others in the future), I encourage you to share this posting.

Dr. Jonathan L. Kramer

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Verizon Buying Comcast? Good idea, sort of.

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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