Legal Archives » Page 3 of 19 » Dr. Jonathan L. Kramer on Wireless Siting & Law

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

Posted on January 11, 2016 by Dr. Jonathan L. Kramer

Want to Sell your Cell Site Lease?

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

Many Pitfalls When You Sell your Cell Site Lease!

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

The (Two) Cell Site Lease Sale Documents Count

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

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

Cell Site Question: How Much is an Acre of Land Worth in the U.S.?

Posted on November 8, 2015November 8, 2015 by Dr. Jonathan L. Kramer

My mentor and colleague, John Pestle of the Varnum, LLP and I teach online lectures about wireless leasing matters. We have taught these wireless leasing

lectures for many years. Our lectures, taught through Lorman Education Services and the International Municipal Lawyers Association focus on key things a wireless site landlord should be thinking about when entering into a decades-long cell site lease, or modifying a lease already in effect.

The number one question we get from our lecture participants is always the same: ‘How much is the going rent?’

John has a splendid way of answering that question. He replies socratically asking the question: ‘How much is an acre of land worth in the United States?’

The point, of course, is that every parcel of land is unique; therefore there cannot be a single right answer. Rather, the more complete answer is ‘How much is a specific acre of land worth to the Lessee and Lessor.’ The potential cell site landlord has one opinion of worth, while the potential wireless carrier tenant has its own view.

The question is then, how to figure out the ballpark.

You will find precious few wireless lease rates on the web. A few years ago, John and I conducted a national survey of lease rates for cell sites on government properties, and the findings can be summarized as follows: Lease rates are all over the map, but there’s a general range between a few hundred dollars per month to over $5,000 per month. What makes one cell site only worth a few hundred dollars a month and another many times that amount?

Location, location, location and need, need, need.

A cell site lease in a rural area will produce lease income for the landlord than will one in a suburban area. A downtown lease will most often induce a higher rent than a suburban lease. An interstate-adjacent lease will induce a higher rent than some downtown rents. A financial district lease is somethings at the top of the pile as goes rent.

Here’s a kicker…

What is an exceptionally desirable area to lease in for one wireless company can be completely worthless for another wireless company. That is because each carrier deploys it coverage in a different manner.

Consider each company’s coverage needs to be a jigsaw puzzle of the same outside dimensions, say 10 miles by 10 miles, which each puzzle having different shaped pieces to fill in the coverage picture inside the edges of the puzzle. A missing piece for one carrier might already be found and inserted for another.

Here’s another kicker…

Lease rates can be completely disconnected from the size of the leased area. That’s because the wireless carrier will often try and grab land claiming that some elements of your land are less valuable to them than others. They might say something like, ‘we value the space occupied by the equipment cabinets to be more valuable than the space occupied by the tower, so you should, too.’ (By the way, don’t fall for this sucker punch. Your land is most likely to have a single per square foot or per cubic foot rent (yes, some leases have three dimensions specified of height, width and depth, rather than the more common two dimensions of width and depth).

There’s more to say about this, and I will, but for now I’ll leave you with this…

BEWARE of leases where the wireless carrier wants to occupy a 100 foot by 100 foot space (10,000 square feet). This rather magic number is far greater than I’ve ever seen a wireless carrier need for its own site, which can be from 250 square feet to about 700 square feet. So why would a wireless carrier want the extra many thousands of square feet? So that it can sublease your land to other wireless carriers, broadcasters, two-way radio companies, paging firms (yes, they still exist) and the like so that your tenant can collect and put that subrent in their pocket instead of your.

There are some very effective means to avoid the sublease trap. We commonly implement those means in leases we write for landlords to maximize the sublease rental income of the wireless landlords who rely on our expertise and experience.

jlk

Wireless Lease Negotiations: Privileges, Not Rights

Posted on September 30, 2015 by Dr. Jonathan L. Kramer

My law firm professionals and I have negotiated hundreds of leases, lease modifications, agreements, ordinances, etc. over the years. We repeated hear the wireless carriers talk about the ‘rights’ they must have.

Nope. That’s not how it works for the savvy landlord.

We advise clients (and just about anyone else who will listen) that the wireless carrier is negotiating for privileges, not rights.

For example,

The very valuable privilege to have a lease extend for 25 or more years;
The very valuable privilege to deny the landlord virtually any means to get out of the lease;
The very valuable privilege for the carrier to get out of the lease on 30 to 60 days’ notice;
The very valuable privilege to take hundreds or thousands of square feet of land for sucker rents of as little as 10¢ per square foot;
The very valuable privilege to suspend rent for some casualty, even when the casualty is the due to the carrier;
The very valuable privilege to impose great duties on the landlord compared with those imposed on themselves; and
Many other valuable privileges that solely benefit the wireless carrier, most commonly to the detriment of the landlord.

You get the idea…the boilerplate deals offered by carriers are hardly equal or fair to landlords. That’s a great reason to use an attorney who knows where the obvious (and the hidden) landmines are to be found in the documents, but I digress.

With the privileges the carrier seeks come payments to the landlord. The greater the bundle of privileges, the greater the payment to the landlord for granting those privileges.

Only when the lease is executed do the privileges convert to rights. Not one second sooner!

Landlords negotiating with the carrier’s agent (and all the better if the landlord has competent legal counsel helping…ahem…) should carefully listen for the words and phrases ‘rights’ or ‘we need’ or ‘we must have’ when uttered by the negotiator for the carrier. Every time that those words and phrases rear their ugly heads…and that will happy often…remind the rep that they are negotiating for privileges, which only convert to rights when the deal is done, fully valued, and the paperwork is fully executed.

The skill and mindset of the landlord’s negotiator for a cell site lease most often makes a huge difference in the result and value produced for the landlord.

We know that. Now you do, too.

Jonathan

Cell Co. to Potential Landlord: Use an Attorney and You’ll Regret It.

Posted on September 30, 2015September 30, 2015 by Dr. Jonathan L. Kramer

I’m simply amazed by many of the tactics used by wireless carrier agents (and therefore condoned by the carrier masters).

Most recently, carrier agents for several big wireless carriers have starting telling potential cell site landlords that if those potential landlords retain the services of outside counsel to help negotiate the lease, there will be financial consequences. Sometimes the threat is the loss of a paltry signing bonus. Sometimes its reduction in the proposed monthly rent.

What strikes me about such threats is how two-faced they are. I know of exactly zero—zilch—nada— wireless firms that enter into lease without having their own attorneys review the documents first.

I tell clients that hear these threats that they should be even more cautious about entering into leases. The stock leases promoted by wireless carriers are, not surprisingly, aimed at grabbing as much as they can from the landlord while paying as little as possible for those grabs. Given that the leases usually run from 20 to 30 years* a landlord making a mistake or missing some well-hidden key point at the lease inception will haunt the landlord for decades.

Duck away from the sucker punch: If the carrier’s agent makes a veiled or direct threat in response to your decision to retain outside counsel, trust your gut. Someone who doesn’t want you to use an attorney has a very good reason for that, and it’s not because they want to do you a favor.

Caveat Locatorem.

One wireless tower firm now claims that their standard lease is 100 years in duration. My response: If that’s that case, we’re going to put even greater limits* on what they can do at the property. Their response: Either silence or sucking sounds.

CTIA Sues City of Berkeley Over POS RF Warning Ordinance

Posted on June 9, 2015June 9, 2015 by Dr. Jonathan L. Kramer

In a move surprising no one who has studied history or the CTIA v. San Francisco case from July, 2010, CTIA, one of the two main wireless industry trade associations, has sued the City of Berkeley over its ordinance titled, “REQUIRING NOTICE CONCERNING RADIO FREQUENCY EXPOSURE OF CELL PHONES.”

The ordinance, codified at Chapter 9.96 of the City’s Municipal Code requires sellers and lessors of cell phones to provide the following point of sale notice:

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. This potential risk is greater for children.

Refer to the instructions in your phone or user manual for information
about how to use your phone safely.

If you would like to read the CTIA v. Berkeley compliant, filed on June 8, 2015, CLICK HERE. (PDF; about 1.5 Mb)

The complaint’s first paragraph sets the tone: “The City of Berkeley, California (“the City”) may be entitled to its opinions, however unfounded.” Enjoy the rest of the complaint, which is framed as a First Amendment ‘freedom not be forced to speak’ claim.

CTIA seeks the following:

WHEREFORE, Plaintiff prays that this Court:
(A) Enter a judgment declaring that Berkeley’s required disclosure regarding RF
Exposure, codified at Berkeley Municipal Code Chapter 9.96, impermissibly abridges CTIA’s
members’ First Amendment rights;
(B) Enter a judgment declaring that Berkeley’s required disclosure regarding RF
Exposure, codified at Berkeley Municipal Code Chapter 9.96, is preempted by federal law;
(C) Enter an injunction barring Defendants the City of Berkeley, California and Christine
Daniel, the City Manager of Berkeley, California, from enforcing or causing to be enforced Berkeley
Municipal Code Chapter 9.96 in order to prevent imminent and irreparable injury to CTIA’s members and harm to the public;
(D) Grant CTIA such relief as it deems just and proper, including an award of reasonable
attorneys’ fees and the costs of this action.

By the way, that last prayer for relief–for reasonable attorney’s fees–lead me to wonder what reasonable might be. It turns out that the CTIA’s lead attorney on the suit, Theodore B. Olson made some news in his own right about his own fees. It was highlighted in a National Law Journal article published on January 5, 2015 which said, in relevant part,

“Gibson, Dunn & Crutcher, with an $1,800 hourly rate for Theodore Olson, an outlier, had the highest rate the NLJ could find in public records.”

AB 57: Now the Cell Tower Siting Fangs Are Out

Posted on April 7, 2015April 7, 2015 by Dr. Jonathan L. Kramer

AB 57, which should be called the “Cell Site Gift Act of 2015” was amended yesterday in the Assembly to add real fangs intended to bite Californians in favor of the wireless industry.

The bill by Assembly Member Bill Quirk (D, 20th) now simply says the following:

(a) A colocation or siting application for a wireless
telecommunications facility, as defined in Section 65850.6, shall
be deemed approved if both of the following occur:

(1) The city or county fails to approve or disapprove the
application within the time periods established by the Federal
Communications Commission in In re Petition for Declaratory
Ruling, 24 FCC Rcd. 13994 (2009).

(2) All public notices regarding the application have been
provided consistent with the public notice requirements for the
application.

(b) The Legislature finds and declares that a wireless
telecommunications facility has a significant economic impact in
California and is not a municipal affair as that term is used in
Section 5 of Article XI of the California Constitution, but is a
matter of statewide concern.

The Plain English translation of what Assembly Member Qurik now proposes on behalf of his wireless industry supporters is this:

Assembly Member Bill Quirk. D., 20th Assembly District

‘Any wireless siting application of any kind, if not either approved or disapproved by a city or county after public notice in the time limits set by the FCC, shall be DEEMED APPROVED.’

Essentially, Assembly Member Quirk extends the deemed approved remedy greatly benefiting his wireless industry supporters to every kind of wireless project in California, which goes far beyond what the FCC has done.

The timing of this bill is very interesting. At the very moment that Assembly Member Quirk is trying to super-bootstrap a portion of the FCC rules to all wireless projects in California, those federal rules are under attack in a federal law suit filed in the 4th Circuit Court of Appeals.

Now is the time to start writing to your Assembly and Senate members to tell them that you don’t want the wireless industry to have super-rights not intended by either Congress or the FCC, and special state-level rights intended to make it almost impossible for the public to effectively argue against cell sites that detrimental to community aesthetics.

Attack of the Drones

Posted on March 31, 2015 by Dr. Jonathan L. Kramer

It’s unusual for me to republish press releases, but this one caught my eye. -jlk
ATLANTA, March 30, 2015 /PRNewswire/ — Solusia Air, LLC, an affiliate of Solusia Services, LLC, today announced it has been awarded an exemption from the Federal Aviation Administration (FAA) to deploy unmanned aircraft systems (UAS) to perform asset audits and safety inspections for wireless and utility infrastructure firms. Solusia Air began the application process in 2014, working with JDA Aviation Technology Solutions.

The UAS included in the exemption is the Aibot X6 UAS by Leica Geosystems. The FAA approval agrees that the combination of the Aibotix X6 Aircraft and Solusia Air’s training and flight safety procedures constitute a minimal risk and are in the interest of the public good.

“The FAA exemption means wireless and utility companies now have a more efficient, safer method for performing audits and safety inspections of infrastructure assets,” said Chris Moccia, CEO, Solusia Air. “Leica is a proven global leader in optics, lasers, GIS software, modeling and 3D spatial solutions and we are thrilled to be partnered with them in this innovative endeavor.”

Under the FAA’s current interim policy, UAS operators who adhere to certain parameters are permitted to fly UAS commercially under Section 333 of the FAA Modernization and Reform Act until such time as the FAA fully implements the UAS regulatory structure.

“This is exciting news for Solusia Air and Leica Geosystems,” said Bryan Baker, North American UAS Sales Manager and pilot for Leica Geosystems Inc. “The FAA is under a lot of pressure to streamline the approval process and finalize the regulatory structure for unmanned aircraft systems. This is the first step to getting companies through the process faster so that they can take advantage of this revolutionary technology.”

Solusia Air UAS services for wireless carriers and tower operators include high-definition photo and video inspection, asset audits, RF microwave path validation, intermodulation/interference identification, wildlife species identification, and safety assessments.

Utility companies can benefit from UAS inspections by obtaining high-definition photo and video data for inspection of substation infrastructure, IR inspections, 3D imaging and point cloud/photogrammetry of utility towers and transmission lines, and wind turbine inspections.

“Wireless infrastructure is in a continuous, dynamic lifecycle,” continued Moccia. “As new technologies are deployed to keep up with the growing demand for mobile data and high-speed connections, towers need to be audited to document and verify existing configurations and equipment inventories. With UAS solutions, this auditing process can now include timely online retrieval of data and images that customers need to make strategic planning, construction and maintenance decisions.”

About Solusia Air
Solusia Air, LLC is a professional services firm that utilizes UAS technologies to provide asset audits and safety inspections for wireless carriers, tower owners and utilities. Our services help reduce costs and save lives by reducing and even eliminating physical climbs, delivering a much safer, data-rich alternative that accurately captures HD photographic and video data of equipment and infrastructure. Our UAS are powered by proprietary, engineered technologies and processes that give customers innovative insights, advanced views of assets, and engineered technical analysis never before delivered or measured. The company is FAA compliant, fully insured, and meets all legal requirements to conduct commercial operations using UAS in the United States. To learn more, visit www.solusiaair.com.

SOURCE Solusia Air, LLC

AB57 Amended: First Baby Tooth Added

Posted on March 28, 2015 by Dr. Jonathan L. Kramer

As I predicted in yesterday’s post, AB 57 was, in fact, amended to start adding teeth. The first tooth is a innocuous…adding a representative of the League of California Cities and a representative of the California State Association of Counties to the board of the California Broadband Council.

But in the best hide-the-ball tradition, the real bite of this legislation, yet to be added (but surely it will), is related to this intent:

Existing law declares the intent of the Legislature that, consistent with this authorization, municipalities have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, but that for the control to be reasonable it must, at a minimum, be applied to all entities in an equivalent manner.

The “all entities” language just above suggests that a tooth about to pop through the gums will be a legislative requirement that telegraph or telephone corporations be treated like all entities in the right-of-way, which would include gas, water, sewer and most importantly electric utilities. If this is the goal of AB57, yet to be disclosed in this legislation, then it does not well serve Assembly Member Quirk’s constituents or property owners in California. The various utilities each have unique technical requirements for installation, operations, and the like for their equipment. It is illogical to equate any of the utilities to any of the other in the right of way. Trying to do so would only encourage the installation of cell sites in residential areas without suitable aesthetic controls simply by saying that 100 years ago PG&E installed a pole, overhead lines and facilities in the area, 100 years later a wireless carrier should be able to do the same thing. There is a substantial difference between a 32,000 volt electrical circuit in the right-of-way and a cell site in the right-of-way. Hopefully this legislation, as it continues to be amended, will not try to make them the same.

So far, the first amendment to add a representative of the League of California Cities and a representative of the California State Association of Counties to the board of the California Broadband Council is innocuous, but more teeth and sharper teeth are sure to come…soon.

Here is the bill as it stands today, March 28, 2015:

BILL NUMBER: AB 57 AMENDED
BILL TEXT

AMENDED IN ASSEMBLY MARCH 26, 2015

INTRODUCED BY Assembly Member Quirk

DECEMBER 2, 2014

An act to amend Section 8886 of the Government Code,
relating to communications.

LEGISLATIVE COUNSEL’S DIGEST

AB 57, as amended, Quirk. Broadband communications infrastructure.

The existing federal Telecommunications Act of 1996 preempts any state or local statute or regulation that may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service, but service. However, this provision does not prohibit a state from imposing imposing, on a competitively neutral basis, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. The prohibition also contains a “safe harbor” that does not affect the authority of consumers, nor does it prevent a state or local
government to manage from managing the public rights-of-way or to require requiring fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis.

Under existing law, telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within the state, and may erect related poles, posts, piers, abutments, and other necessary fixtures of their lines, but may not incommode the public use of the road or highway or interrupt the navigation of the waters. Existing law declares the intent of the Legislature that that, consistent with this authorization, municipalities have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, but that for the control to be reasonable it must, at a minimum, be applied to all entities in an equivalent manner.

Existing law establishes the California Broadband Council in state government for the purpose of promoting broadband deployment in unserved and underserved areas of the state and broadband adoption throughout the state, imposes specified duties on the council relating to that purpose, and specifies the membership of the council.

This bill would state the intent of the Legislature to enact legislation to promote the deployment of communications infrastructure by removing barriers to investment. The bill would add the President of the Board of Directors of the League of California Cities and the President of the Executive Committee of the California State Association of Counties, or their respective designees, to the membership of the council.

Vote: majority. Appropriation: no. Fiscal committee: no
yes. State-mandated local program: no.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares all of the following:

(a) California consumers and businesses have adopted new, Internet-based technologies and mobile connections at an unprecedented rate. Internet-based products and devices, including smartphones and tablets, are providing consumers everywhere with new choices to connect, to communicate, and to access information and entertainment.

(b) The deployment of faster, more robust, and advanced wireless and wireline broadband infrastructure is essential to ensuring there is sufficient capacity and coverage to support the increasing reliance of California residents on broadband services.

(c) State and local review of broadband infrastructure deployment serves important interests, but at the same time, California must take steps to ensure that requirements do not hinder investment. State and local permitting processes should be designed to eliminate unnecessary barriers and spur deployment of infrastructure. This includes streamlining permitting requirements to reduce delay and cost, and the creation of uniform processes.

(d) New and upgraded infrastructure delivers a vast array of consumer and community benefits, including important improvements to public safety, education, and healthcare. The power of mobile communications is a critical tool for first responders in emergency situations. According to the Federal Communications Commission, nearly 70 percent of 911 calls are made from mobile telephones, and that percentage is growing.

(e) As we continue the transition to a knowledge-based, technology-driven economy, California must invest in students and provide them with the proper tools and technologies to bolster academic achievement, starting with expanding access to high-speed broadband Internet and next-generation Internet Protocol-based networks.

(f) Facilitating broadband deployment additionally plays a key role in advancing telemedicine and mobile health applications, which can help Californians remotely monitor their health while reducing medical costs.

(g) Wireless broadband is also key to economic development and a driver for new business and jobs. Businesses increasingly depend on strong wireless broadband service to carry their employees through the work day. An estimated 94 percent of small businesses surveyed use smartphones to conduct business and mobile technologies are saving the country’s small businesses more than sixty-five billion dollars ($65,000,000,000) a year.

(h) Broadband infrastructure deployment creates jobs. A 2013 study conducted by the research firm Information Age Economics projects that wireless infrastructure investment will generate as much as one trillion two-hundred billion dollars ($1,200,000,000,000) in economic growth while creating over 1.2 million new jobs, nationally, over the next five years.

(i) It is the intent of the Legislature to enact legislation to promote the deployment of communications infrastructure by removing barriers to investment. Removing investment barriers is critical to meeting the surging demand by California residents for advanced wireless and wireline broadband technologies and services, supporting and enhancing critical public safety needs, and bridging the digital divide by increasing access for more Californians to improved education, health care, and economic development opportunities.

SEC. 2. Section 8886 of the Government
Code is amended to read:
8886. (a) The membership of the California Broadband Council shall include all of the following:
(1) The Director of Technology, or his or her designee.
(2) The President of the Public Utilities Commission, or his or her designee.
(3) The Director of Emergency Services, or his or her designee.
(4) The Superintendent of Public Instruction, or his or her designee.
(5) The Director of General Services, or his or her designee.
(6) The Secretary of Transportation, or his or her designee.
(7) The President of the California Emerging Technology Fund, or his or her designee.
(8) A member of the Senate, appointed by the Senate Committee on Rules.
(9) A member of the Assembly, appointed by the Speaker of the Assembly.
(10) The President of the Board of Directors of the League of California Cities, or his or her designee.
(11) The President of the Executive Committee of the California State Association of Counties, or his or her designee.
(b) Members of the Legislature appointed to the council shall
participate in the activities of the council to the extent that their
participation is not incompatible with their positions as Members of
the Legislature.

If you’re wondering about Government Code Section 8886, here’s what it says as of today:

8886. (a) The membership of the California Broadband Council shall
include all of the following:
(1) The Director of Technology, or his or her designee.
(2) The President of the Public Utilities Commission, or his or
her designee.
(3) The Director of Emergency Services, or his or her designee.
(4) The Superintendent of Public Instruction, or his or her
designee.
(5) The Director of General Services, or his or her designee.
(6) The Secretary of Transportation, or his or her designee.
(7) The President of the California Emerging Technology Fund, or
his or her designee.
(8) A member of the Senate, appointed by the Senate Committee on
Rules.
(9) A member of the Assembly, appointed by the Speaker of the
Assembly.
(b) Members of the Legislature appointed to the council shall
participate in the activities of the council to the extent that their
participation is not incompatible with their positions as Members of
the Legislature.

AB57 Comes Alive – Local Wireless Siting Controls In California May be in Jeopardy

Posted on March 27, 2015 by Dr. Jonathan L. Kramer

Bill Quirk’s, the California Assembly Member serving the 20th District has had a mysterious bill, AB 57, in the hopper since December 2, 2014. It appears that AB57 is the newest push by the wireless industry to move towards some level of wireless site deregulate regarding the location and installation of cell towers and cell sites. AB57 is now back in action, and it has been referred to the California Assembly’s Committee on Utilities and Commerce.

While the teeth of the bill have yet to be disclosed we have just the original ‘sense of the Legislature’ language. You can reasonably expect those teeth to come out in print just before the Assembly’s Committee on Utilities and Commerce considers action on AB57.

YOU SHOULD BE WATCHING WHAT’S HAPPENING ON AB57, especially if you live in Assembly Member Quirk’s district (see the inset map).

If Assembly Member Quirk puts teeth in his legislation that will protect Californians and our community aesthetics, that would be great. More likely, however, is that AB57 will remove to some degree city and county authority to determine where cell sites should be installed, and the aesthetics of the cell site. Hopefully Assembly Member Quirk will be promote the interests of local control and his own constituents over the the wireless industry.

I’ve had a chance to talk with wireless industry members off-the-record. They seem to have an inside peek at AB57 and seem excited about it. That should set off alarm bells with community members who care about community aesthetics.

Assembly Member Quirk’s district, the 20th Assembly District includes the cities of Hayward, Union City, the northern portion of Fremont and the unincorporated communities of Ashland, Castro Valley, Cherryland, Fairview, and Sunol.

Finally, for those of you living in Assembly Member Quirk’s district, ask him why he has omitted information about AB57 from his web site.

Jonathan

47 U.S.C. § 555a(a) Bars Fees Award Against City in California

Posted on March 21, 2015 by Dr. Jonathan L. Kramer

From the California Court of Appeal, Second Appellate District, Division 5 regarding litigation by Charter Cable (Marcus Cable Associates) v. the City of Glendale, California:

As explained [in the decision], pursuant to Code of Civil Procedure section 2033.420 (section 2033.420), under certain circumstances, a party to a civil action that denies a pretrial request for admission without a reasonable basis can be ordered to pay to the propounding party the reasonable expenses incurred—including attorney fees and costs—in proving the matter covered by the request (costs of proof). Plaintiff, appellant, and cross-respondent City of Glendale (Glendale) appeals from a postjudgment order granting, in part, a motion by defendant, respondent, and cross-appellant Marcus Cable Associates, LLC, dba Charter Communications, Inc. (Charter) to recover such costs of proof under section 2033.420. Charter cross-appeals from that portion of the trial court’s order denying, in part, its motion.

We hold that the limitation on remedies in 47 U.S.C. § 555a(a) (section 555a(a))1 precluded the trial court from awarding Charter costs of proof under section 2033.420. We therefore reverse that portion of the trial court’s order granting, in part, Charter’s motion for recovery of costs of proof2 and remand the matter to the trial court with instructions to enter a new order denying Charter’s motion for recovery of costs of proof in its entirety.

Congrats to Bill Marticorena, Jeff Melching and Michelle Molko (Rutan & Tucker), attorneys for the City of Glendale.

You can download the full 17 page decision VIA THIS LINK.

Jonathan

Want to Sell your Cell Site Lease?

Many Pitfalls When You Sell your Cell Site Lease!

The (Two) Cell Site Lease Sale Documents Count

Caveat Locatorem.

*One wireless tower firm now claims that their standard lease is 100 years in duration. My response: If that’s that case, we’re going to put even greater limits on what they can do at the property. Their response: Either silence or sucking sounds.

‘Any wireless siting application of any kind, if not either approved or disapproved by a city or county after public notice in the time limits set by the FCC, shall be DEEMED APPROVED.’

One wireless tower firm now claims that their standard lease is 100 years in duration. My response: If that’s that case, we’re going to put even greater limits* on what they can do at the property. Their response: Either silence or sucking sounds.